UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


LAW  LIBRARY 


C 


5 


COMMON-LAW  PLEADING: 
ITS  HISTORY  AND  PRINCIPLES. 


COMMON-LAW  PLEADING: 

ITS  HISTORY  AND  PRINCIPLES. 


INCLUDING 


DICEY'S  EULES   COJSTCEROT^G  PARTIES 
TO  ACTIONS 


AND 


stephe:n^'S  rules  of  pleading. 


BY 

R.  ROSS    PERRY, 

OF  THE  BAB  OF  THE  DISTBICT  OF  COLUMBIA. 

LECTUKEK   ON   COMMON-LAW   PLEADING    IN   THE    GEORGETOWN    (d.C.) 
UNIVERSITY   LAW   SCHOOL. 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

189T. 


T 


Copyright,  1897, 
By  E.  Koss  Peret. 


University  Press: 
John  Wilson  ahd  Son,  Cambridge,  U.S.A. 


PREFACE. 


In  my  experience  as  a  lecturer  to  students  upon 
Common-Law  Pleading,  I  have  felt  the  need  of  a  text- 
book containing  the  discoveries  (for  such  they  may 
properly  be  called)  upon  the  subject  made  in  the  last 
twenty-five  years  by  such  men  as  Pollock  and  Maitland 
in  the  mother-country,  and  Bigelow,  Holmes,  Thayer, 
Ames,  and  others  among  ourselves.  I  have  here 
endeavored  to  gratify  that  need.  The  fundamental 
principles  of  the  common-law  with  respect  to  actions 
can  never  be  better  stated  than  they  have  been  by 
Chitty.  Stephen  has  performed  a  like  task  for  the 
rules  of  pleading,  while  Dicey  has  embraced  the  law 
governing  the  selection  of  the  parties  to  an  action  in 
an  admirable  series  of  rules.  These  three  treatises 
have  been,  so  far  as  was  practicable,  combined  here, 
and  the  language  of  their  authors  has  been  used 
with  the  fewest  possible  modifications.  Free  use  has 
been  also  made  of  the  third  book  of  Blackstone's 
Commentaries. 

Therefore  this  work,  if  I  may  venture  to  give  it  that 
name,  pretends  to  be  only  a  re-statement  in  a  con- 
densed form  of  what  has  been  said  upon  its  subject  by 


818201 


Vi  PREFACE. 

many  authors  in  many  books.  Indeed,  wherever  the 
language  of  the  particular  author  seemed  to  be  the 
most  appropriate  it  has  been  adopted.  The  only  scope 
for  original  writing  upon  this  subject  is  in  the  line  of 
discovery  followed  by  the  distinguished  men  whom  I 
have  already  named ;  this  path  is  necessarily  closed  to 
the  lawyer  in  active  practice  at  the  bar. 

As  this  book  is  intended  for  the  student  and  is  de- 
signed to  teach  the  principles  of  a  science  which  was 
long  since  perfected,  no  effort  has  been  made  to  digest 
recent  decisions,  or  even  to  refer  to  them  (save  for 
some  special  purpose).  The  cases  cited  are  almost 
exclusively  the  leading  English  authorities  referred  to 
by  Chitty  and  by  Stephen.  Indeed,  Saunders'  Reports 
furnish  the  best  collection  of  cases  to  be  consulted  by 
the  student,  who  should  supplement  his  studies  by  a 
close  perusal  of  those  Reports  or  of  Ames'  Cases  on 
Pleading. 

As  the  subject  of  this  work  is  pleading  as  it  existed 
at  common-law,  the  present  tense  is  frequently  used 
in  describing  things  which  have  long  since  ceased  to 
exist. 

It  will  perhaps  be  objected  that  in  speaking  (pp.  46, 
47)  of  the  modern  conception  of  a  contract,  I  have 
unduly  magnified  the  element  of  consent  at  the  expense 
of  that  of  consideration.  Sir  Frederick  Pollock  is  my 
authority  for  what  I  have  said.  In  "  The  Principles  of 
Contract "  (p.  2),  he  states :  "  The  first  and  most  essen- 
tial element  of  an  agreement  is  the  consent  of  the 
parties.  There  must  be  the  meeting  of  two  minds  in 
one  and  the  same  intention."     Again  (p.  8),  "  Perhaps 


PEEFACE.  VU 

it  (consideration)  is  to  be  regarded  rather  as  a  condi- 
tion generally  (though  not  always)  imposed  by  a  posi- 
tive rule  of  English  law  as  needful  to  the  formation  of 
a  binding  contract  than  as  an  elementary  constituent 
of  an  agreement." 

I  am  much  indebted  to  Joseph  J.  Darlington,  Leonard 
H.  Poole,  Henry  W.  Sohon,  and  E.  Richard  Shipp,  of 
the  District  of  Columbia  bar,  for  assistance  in  the 
revision  of  proof,  and  also  for  suggestions  as  to  the 
body  of  the  work. 

The  index  and  the  tables  of  cases  and  of  contents 
have  been  carefully  prepared  by  J.  M.  Gould  of  the 
Massachusetts  bar,  to  whom  I  am  under  obligations  for 
that  part  of  the  work. 

E.   ROSS  PEERY. 

Washikgton,  D.  C,  July  26,  1897. 


TABLE   OF  CONTENTS. 


Page 
Introduction 1 


CHAPTER  I. 

Of  Remedies 11 

Self-help 12 

by  the  mere  act  of  the  parties 15 

by  the  joint  act  of  all  parties  concerned 17 

by  sole  operation  of  law .    .  18 


CHAPTER  11. 

Of  Courts ...  20 

Courts  of  record ...  21 

not  of  record ...  21 

in  general 21 

Ancient  prominence  of  law  of  procedure 22 

Anglo-Saxon  courts 24 

Anglo-Norman  courts 28 

The  Curia  Regis 28 

Rise  of  the  Court  of  Exchequer 29 

Justices  in  Eyre 30 

Birth  of  the  Court  of  Common  Pleas 31 

Court  of  King's  Bench 31 

The  judicial  circuits 32 

Jurisdiction  of  Court  of  King's  Bench 34 

of  Court  of  Common  Pleas 35 

of  Court  of  Exchequer 35 

Court  of  Exchequer  Chamber 36 

House  of  Peers 36 


CHAPTER  m. 

Of  forms  of  Actions 38 

Real  actions 40 

development  of .  42 


X  TABLE   OF   CONTENTS. 

Page 
Mixed  actions 45,  93 

Quare  Impedit  and  Waste 45 

Personal  actions 46 

division  of,  into 

(1)  Formed  actions  ex  contractu,  which  include  :  — 

debt 48 

detinue 55 

covenant 57 

account 60 

scire  facias 60 

(2)  Formed  actions  ex  delicto,  or  in  tort,  which  include  :  — 

trespass 63 

replevin 73 

Inadequacy  of  formed  actions 77 

Actions  on  the  case 77 

assumpsit 82 

trover 90 

Ejectment 93 

mesne  profits 100 

Consequences  of  a  mistake  in  choosing  the  form  of  action     .     .     .  101 

Extraordinary  forms  of  actions 102 

mandamus 102 

procedendo • 103 

prohibition 103 

quo  warranto 104 

informations 105 

habeas  corpus 105 

certiorari 107 

writs  of  error 108 


CHAPTER   IV. 

Of  the  joinder  and  election  of  Actions 109 

Joinder  of  actions 109 

Election  of  actions Ill 


CHAPTER  V. 

Parties  to  Actions     . 116 

Dicey 's  rules  for  the  selection  of  parties 116 

The  persons  who  can  sue  and  be  sued 116 

General  rules  applicable  to  all  actions 117 

Actions  on  Contract — Plaintiffs  —  General  Rules 117 

principal  and  agent 118 

partners  and  unincorporated  companies 119 


TABLE   OP   CONTENTS.  Xi 

Page 

corporations  and  incorporated  bodies 120 

husband  and  wife 121 

bankrupt  and  trustee 121 

executors,  administrators,  and  heirs 122 

Actions  on  Contract  —  Defendants  —  General  Rules      .....  124 

principal  and  agent 125 

partners  and  unincorporated  companies 126 

corporations  and  incorporated  bodies 126 

infants 127 

husband  and  wife 127 

bankrupt  and  trustee 128 

executors,  administrators,  and  heirs 129 

Actions  for  Tort  —  Plaintiffs  —  General  Rules 130 

principal  and  agent 131 

partners 131 

husband  and  wife 131 

bankrupt  and  trustee 132 

executors  and  administrators 132 

Actions  for  Tort  —  Defendants  —  General  Rules 132 

principal  and  agent 133 

partners 133 

corporations 133 

infants 134 

husband  and  wife 134 

bankrupt  and  trustee 134 

executors  and  administrators 134 

Ejectment 134 

Consequences  of  Non-Joinder  and  Mis-Joinder  of  Parties  ....  135 


CHAPTER  VI. 

Of  the  Original  Writ 137 

CHAPTER  VII. 

Of  the  proceedings  in  an  action  from  its  commencement 

TO  ITS   termination 148 

The  process 148 

Bill  of  Middlesex,  latitat  and  quo  minus 153 

The  appearance  of  the  defendant 158 

The  pleadings    , 159 

Continuances 163 

The  declaration 164 

Proceeding  by  bill       167 


xii  TABLE   OF   CONTENTS. 

Page 

Production  of  suit 168 

The  defence 169 

Examination  of  the  plaintiff's  suit 1G9 

Offer  of  proof 170 

Origin  of  special  pleading 171 

The  demurrer 174 

Pleas 175 

Dilatory  pleas 175 

Peremptory  pleas 175,  178 

The  issue 179 

Occasional  pleas  and  incidents 182 

Pleas  puis  darraign  continuance 182 

Demand  of  view 183 

Voucher  to  warranty 184 

Profert  and  oyer 185 

Imparlances 187 

Counter-pleas  to  oyer,  &c 188 

Demurrer-book  —  paper-book 189 

Amendments 189 

Entering  the  issue  on  record 190 

Modes  of  trial 191 

Decision  of  issues  in  law 191 

Trial  of  issues  in  fact 191 

old  forms  — 

(1)  by  witnesses 193 

(2)  by  oath 193 

(3)  by  ordeal 194 

(4)  by  battle 195 

Miscellaneous  proofs 196 

The  trial  by  the  record 196 

Trial  by  jury 197 

venire  facias 201 

trials  at  nisi  prius 201 

trial  at  bar 202 

conduct  of  jury  trial 203 

variance 204 

the  verdict 205 

incidents  of  jmy  trial 205 

Bill  of  exceptions 206 

Demurrer  to  evidence 206 

Special  verdict 207 

General  verdict  subject  to  a  special  case 208 

Proceedings  subsequent  to  verdict 209 

motions,  for  a  new  trial 210 

in  arrest  of  judgment 211 

for  judgment  non  obstante  veredicto 212 

for  a  repleader 213 

for  a  venire  facias  de  novo 215 


TABLE   OF   CONTENTS,  xiii 

Page 

The  judgment 215 

for  the  plaintiff 216 

for  the  defendant 217 

by  default,  confession,  &c \.  218 

Entering  judgment  on  record 220 

Execution 221 

Writs  of  error 222 


CHAPTER  Vm. 

Of  the  rules  of  pleading 226 

Abstract  of  proceedings  in  a  supposed  case 227 

CHAPTER  IX. 

Op  rules  which  tend  simply  to  the  production  of  an  issue  231 
Rule  I.  —  After  the  declaration  the  parties  must  at  each 

STAGE  DEMUR,  OR  PLEAD  BY  WAY  OF  TRAVERSE,  OR  BY  WAY  OF 

confession  and  avoidance 231 

I.    Of  demurrers 232 

1.  Of  the  nature  and  properties  of  a  demurrer     ....  232 

2.  Of  the  effect  of  passing  a  fault  by  without  demurrer    .  236 

of  the  aider  of  faults  by  pleading  over 236 

of  the  aider  of  faults  by  verdict 237 

of  the  aider  of  faults  by  the  statutes  of  jeofails  and 

amendments 238 

8.  Of  the  considerations  which  determine  the  pleader  in 

his  election  to  demur  or  plead 239 

11.   Of  pleadings 240 

1.  Of  the  nature  and  properties  of  traverses 240 

of  common  traverses 240 

of  general  issues 241 

of  the  traverse  de  injuria 2.51 

of  special  traverses 255 

the  inducement 263,  264,  266 

there  must  be  no  traverse  upon  a  traverse  .     .     .  264 

Of  traverses  in  general 266 

(1)  a  traverse  must  deny  "  modo  et  forma  "    .     .  266 

(2)  a  traverse  must  not  be  taken  on  matter  of 

law 268 

(3)  a  traverse  must  not  be  taken  upon  matter  not 
alleged 269 

(4)  a  party  to  a  deed,  who  traverses  it,  must  plead 

"  non  est  factum  " 270 


XIV  TABLE   OP   CONTENTS. 

Page 

2.  Of  the  nature  and  properties  of  pleadings  in  confession 

and  avoidance 272 

of  pleas  in  justification  or  excuse,  and  pleas  in  dis- 
cbarge        272 

of  color 273 

3.  Of  the  nature  and  properties  of  pleadings  in  general    .  279 

(1)  every  pleading  must  be  an  answer  to  the  whole 

of  what  is  adversely  alleged 279 

(2)  every  pleading  is  taken  to  confess  such  travers- 
able matters  alleged  on  the  other  side  as  it  does  not 
traverse 281 

of  protestation 281 

Exceptions  to  the  rule 283 

In  case  of  dilatory  pleas 283 

pleadings  in  estoppel 283 

new  assignments 283 

extra  viam 285 

Inference  from  the  ride  —  that  it  is  sufficient  to  demur,  traverse,  or 

confess  and  avoid 288 

Exception,  as  to  replication  showing  breach  of  award      .     .     .  288 

Rule  II.  —  Upon  a  traverse  issue  must  be  tendered     .     .  289 

Different  forms  of  tendering  issue 289 

Another  form  of  the  rule,  viz. ,  that  upon  a  negative  and 
affirmative  the  pleading  shall  conclude  to  the  country, 

but  otherwise  with  a  verification .  290 

Exception  —  that  when  new  matter   is   introduced,  the   pleading 

should  always  conclude  with  a  verification 290 

Rule  III.  —  Issue,  when  well  tendered,  must  be  accepted  292 

Of  the  similiter 292 

Of  the  joinder  in  demurrer 293 

CHAPTER  X. 

Of  rules  wniCH  tend  to  secure  the  materiality  of  the 
ISSUE 295 

Rule. — All  pleadings  must  contain  matter  pertinent  and 

material 295 

Rules  subordinate  and  illustrative  — 

1.  Traverse  must  not  be  taken  on  an  immaterial  point      .     295 
But  where  there  are  several  material  allegations,  it  is 
in  the  option  of  the  pleader  to  traverse  which  he 

pleases 297 

-   2.  A  traverse  must  not  be  too  large  nor  too  narrow  .     .     .     297 
But  a  party  may,  in  general,  traverse  a  material  alle- 
gation of  title  or  estate  to  the  extent  to  which  it  is 
alleged,  though  it  needed  not  to  be  alleged  to  that 
extent 299 


TABLE   OP   CONTENTS.  XV 


CHAPTER  XI. 

Page 
Of  rules  which  tend  to  produce  singleness  or  unity  in 
the  issue 303 

KuLE  I.  —  Pleadings  must  not  be  double 303 

Of  the  nature  of  duplicity  in  general 303 

Rules  subordinate  and  illustrative  — 

1.  A  pleading  will  be  double  that  contains  several  answers, 
whatever  be  the  class  or  quality  of  the  answer      .     .     •     307 

2.  Matter  may  suffice  to  make  a  pleading  double,  though  it 

be  ill  pleaded 307 

3.  But  matter  immaterial  will  not  operate  to  make  a  plead- 
ing double 308 

4.  Nor  matter  that  is  pleaded  only  as  necessary  inducement 

to  another  allegation 309 

5.  Nor  matters,  however  multifarious,  that  together  con- 
stitute but  one  connected  proposition  or  entii-e  point  — 
cumulative  traverses 310 

6.  Nor  a  mere  protestation 313 

Of  several  counts 313 

Of  several  pleas 317 

effect  of  the  statute  4  Anne  c.  16,  §  4 318,  320 

Rule  II. — It    is    not    allowable   both   to   plead   and   to 

DEMUR   TO   THE   SAME   MATTER 322 


CHAPTER  XII. 

Of    RULES    WHICH    TEND    TO    PRODUCE    CERTAINTY    OR   PARTICU- 
LARITY IN   THE   ISSUE 323 

Rule  I.  —  The  pleadings  must  have  certainty  of  place    .  323 
Of  venue  — 

of  the  form  in  which  the  venue  is  to  be  laid 323 

of  its  effect  upon  the  venire 328 

of  the  state  of  practice  as  to  laying  the  venue  truly      .     .  329 

Rule  II.  —  The  pleadings  must  have  certainty  of  time    .  334 
Rule  HI.  —  The  pleadings  must  specify  quality,  quantity, 

and  value 336 

Rule   IV.  —  The    pleadings    must    specify    the    names    of 

persons 339 

Rule  V.  —  The  pleadings  must  show  title 341 

I.   Of  the  case  where  a  party  alleges  title  in  himself,  or  in 

another  whose  authority  he  pleads 341 

1.  Of  alleging  a  title  of  possession 341 


XVI  TABLE    OF    CONTENTS. 

Page 

2.  Of  alleging  title  in  its  full  and  precise  extent  .     .     .  342,  345 

of  the  allegation  of  the  title  itself     ....       341-344 

of  showing  its  derivation 315 

as  to  estates  in  fee  simple 345 

as  to  particular  estates 346 

where  a  party  claims  by  descent 34S 

where  a  party  claims  by  conveyance 348 

3.  Of  alleging  a  general  freehold  title 350 

II.    Of  the  case  where  a  party  alleges  title  in  his  adversary      .     351 

Exceptions  to  rule  :  No  title  need  be  shown  where  the  opposite 

party  is  estopped  from  denying  it 354 

No  title  need  be  shown   in   avowries    or  cognizances   for 

rent,  &c 355 

Rule  VI.  —  The  pleadings  must  show  authority  ....     355 
Rule  VII.  —  Ix  general,  whatever  is  alleged  ix  pleading 

MUST    be   alleged   WITH   CERTAINTY 358 


SUBORDINATE     RULES     TENTJING    TO     LIMIT    OR    RESTRAIN    THE     DEGREE 

OF   CERTAINTY. 

1.  It  is  not  necessary,  in  pleading,  to  state  that  which  is  merely 

matter  of  evidence 362 

2.  It  is  not  necessary  to  state  matter  of  which  the  court  takes 

notice  ex  oflBcio 364 

3.  It  is  not  necessary  to  state  matter  which  would  come  more 

properly  from  the  other  side 366 

4.  It   is   not    necessary  to   aUege   cii'cumstances  necessarily 

implied 369 

5.  It  is  not  necessary  to  allege  what  the  law  wUl  presume  .     .     369 

6.  A  general  mode  of  pleading  is  allowed,  where  great  prolix- 

ity is  thereby  avoided 370 

7.  A  general  mode  of  pleading  is  often  sufficient,  where  the 

allegation  on  the  other  side  must  reduce  the  matter  to 
certainty 372 

8.  No  greater  particularity  is  required  than  the  nature  of  the 

thing  pleaded  will  conveniently  admit 377 

9.  Less  particularity  is  required  when  the  facts  lie  more  in 

the  knowledge  of  the  opposite  party  than  of  the  party 
l^leading 378 

10.  Less  particularity  is  necessary  in  the  statement  of  matter  of 

inducement  or  aggravation  than  in  the  main  allegations     379 

11.  With  respect  to  acts  valid  at  common  law,  but  regulated  as 

to  the  mode  ot  performance  by  statute,  it  is  sufficient  to 
use  such  certainty  of  allegation  as  was  sufficient  before 
the  statute 380 


TABLE   OF   CONTENTS.  XVU 


CHAPTER    Xin. 

Page 
Of  rules  which  tend  to  prevent  obscurity  and  confusion 
in  pleading 382 

Rule  I.  —  Pleadings  must  not  be  insensible  or  repugnant   .    382 
Rule  II. — Pleadings  must  not  be  ambiguous  or  doubtful 
IN  meaning;   and  when  two  different  meanings  present 
themselves,  that  construction  shall  be  adopted  which 

IS  most  unfavorable  to  the  party  pleading 383 

Of  certainty  to  a  common  intent 388 

Of  negatives  pregnant 384 

Rule  III.  —  Pleadings  must  not  be  argumentative  ....     386 
Rule  IV.  —  Pleadings  must  not  be  hypothetical,  or  in  the 

alternative 388 

Two  affirmatives  or  two  negatives  do  not  make  a  good  issue  387,  388 
Rule  V.  —  Pleadings  must  not  be  by  way  of  recital,  but 

MUST   be   positive   IN   THEIR   FORM 389 

Rdle  VI.  —  Things  are  to  be  pleaded  according  to  their 

LEGAL   EFFECT 390 

Rule  VII.  —  Pleadings  should  observe  the  known  forms  of 
expression,  as  contained  in  approved  precedents  .     .     .     391 

Rule  VIII.  —  Pleadings  should  have  their  proper  formal 
commencements  and  conclusions 392 

Rule  IX.  —  A  pleading  which  is  bad  in  part,  is  bad  alto- 
gether      401 


CHAPTER  XIV. 

Of  rules   which  tend  to  prevent   prolixity  and  delay  in 
pleading 403 

Rule  I.  —  There  must  be  no  departure  in  pleading  .     .     .  403 
Rule  H.  — Where  a  plea  amounts  to  the  general  issue  it 

should  be  so  pleaded 408 

Rule  III.  —  Surplusage  is  to  be  avoided 412 


CHAPTER  XV. 

Of  certain  miscellaneous  rules 415 

Rule  I.  —  The  declaration  should  commence  with  a  recital 

of  the  original  writ 415 

Rule  II.  —  The  declaration  must  be  conformable  to  the 

original  writ 417 

Rule  III.  —  The  declaration    should,    in   conclusion,    lay 

damages,  and  allege  production  of  suit 418 

Rule  IV.  —  Pleas  must  be  pleaded  in  due  order    ....    420 

6 


xviii  TABLE    OF    CONTENTS. 

Page 

Rule  V Pleas  must  be  pleaded  with  defence    ....    421 

Rule  VI.  —  Pleas  in  abatement  must  give  the  plaintiff  a 

BETTER  WRIT    OR   BILL 424 

Rule  VII.  —  Dilatory  pleas  must  be  pleaded  at  a  prelim- 
inary STAGE  OF   the   SUIT 424 

Rule  VIII.  —  All    affirmative    pleadings   which    do     not 

CONCLUDE    TO    THE   COUNTRY   MUST    CONCLUDE  WITH  A    VERIFI- 
CATION   425 

Rule  IX.  —  In  all  pleadings,  where  a  deed  is  alleged  under 

WHICH    the    party     CLAIMS    OR    JUSTIFIES,    PROFERT    OF    SUCH 
DEED    MUST  BE  MADE 426 

Rule  X. — All   pleadings  must  be  properly  entitled    of 

THE     COURT    AND     TERM 431 

Rule  XI.  —  All  pleadings  ought  to  be  true 432 


Appendix 435 

Index 453 


ABBREVIATIONS, 

In  Addition  to  such  as  are  in  Current  Use. 

Anglo-Saxon  Law  .  .  Essays  in  Anglo-Saxon  Law.  Little,  Brown,  & 
Co.,  Boston,  1876. 

Bl.  Com Blackstone's  Commentaries,  Hammond's  edi- 
tion, 1890. 

Chit.  PI Chitty's    Pleading,    Volume    I.,    4th    London 

edition,    1825. 

Evans'  PI Evans'  Pleading,  Edward  J.  Coale,  Baltimore, 

1827. 

Gould's  PI.      .  .     .     Gould's  Pleadmg,  4th  edition,  1873. 

Hist.  Pr.       .     ,  .     .     History  of  Procedure  in  England,  by  Melville 

M.  Bigelow,  1880. 

Ker.  Eq.  Ju.     .  .     .     An  Historical  Sketch  of  the  Equitable  Jurisdic- 

tion of  the  Court  of  Chancery,  by  D.  M. 
Kerly,  1890. 

Holmes'  C.  L.      ...     The  Common  Law,  by  O.  W.  Holmes,  Jr.,  1881. 

Min.  Inst Institutes  of  Common  and  Statute  Law,  by  John 

B.  Minor,  1878. 

P.  &  M.  Hist.  .  .  .  The  History  of  English  Law  before  the  Time 
of  Edward  I.,  by  Su-  Frederick  Pollock  and 
Frederic  William  Maitland,  1895. 

Reeves' Hist.  .  .  .  Reeves' History  of  the  English  Law.  Finlason's 
edition,  London,  1869. 

Steph.  PI Stephen's  Pleading,  Tyler's  American,  from  2d 

London  (1827)  edition. 

Thay.  Jury  ....  Development  of  Trial  by  Jury,  by  James 
Bradley  Thayer,  1896. 


TABLE   OF   CASES   CITED. 


[the  ebtekences  are  to  the  pages.] 


Abbot  v.  Chapman 

Adams  v.  Cross  844, 

Aglionby  v.  Towerson 

Alexander  v.  Mawman 

Alsope  V.  Sytwell 

Amory  v.  Brodrick  324 

Andrew  v.  Whitehead 

Angle  V.  Chicago,  &c.  R.  R.  Co. 

Anon.  (Kelw.  103  b) 

(5  Mod.  18) 

(12  Mod.  537) 

(2  Salk.  519)  236,  237, 

(2  Salk.  643) 

(3  Salk.  353)  263, 

(  2  Vent.  196) 

(2  Wils.  150) 

Arlington  (Lord)  v.  Merricke 

Arnfield  v.  Bate 

Arundel  (Corporation  of)  v.  Bow 

man 
Ashby  V.  White 
Asliford  V.  Thornton 
Aslin  V.  Parkin 
Attorney-General  v.  Meller 


Attwood  V.  Davis 
Auberie  v.  James 
Austin  V.  Jervoise 
Aylesbury  v.  Harvey 


351, 
353, 


248 
347 
370 
423 
379 
402 
336 
82 
278 
246 
410 
380 
343 
264 
295 
235 
375 
332 

332 
11 

66 
98 
352, 
378 
400 
385 
359 
427 


Baker  v.  Blackman 

297 

V.  Dewey 

271 

Baldwin's  Case 

285 

Ball  V.  Squarry 

187 

Banfill  V.  Leigh 

427,  428 

Ranks  v.  Pratt 

370 

Barker  v.  Braham 

356 

V.  Lade 

390 

Barnes  v.  Hunt 

287 

Bartley  v.  Godslake 

433 

Barton  v.  Webb 

370 

Bateman  v.  Allen 

350 

Bates  V.  Cort 

235 

Batt?;.  Bradley 

287 

Bayard  v.  Malcolm  434 

Baylis  v.  Dinely  245 

Beak  v.  Tyrrell  362 

Beal  V.  Simpson  268 

Belasyse  i'.  Hester  2.35 

Belk  i:  Broadbent  356 

Bell  V.  Alexander  433 

Bellamy's  Case  427 

Benbridge  v.  Day  402 

Bennet  v.  Filkins  259,  399 

Bertie  v.  Pickering  337 

Birch  I'.  Bellamy  380 

I'.  Wilson  408,  410,  411 

Bird  V.  Randall  250 

Bisse  V.  Harcourt  395,  399 

Blackborough  v.  Davis  348 

Blackmore  v.  Tidderley  386 

Blake  v.  Foster  256,  3.52 

Bleke  v.  Grove  307,  308 

Blizard  v.  Kelly  391 

Blockley  v.  Slater  347 

Bolton  V.  Carlisle  (Bishop  of)  233 

V.  Cannon  322 

Bond  V.  Dustin  212 

Bounel  v.  Fouke  86 

Bonner  v.  Wilkinson  271 

Bonzi ;;.  Stewart  311 

Bowdell  V.  Parsons  233 

Bowditch  r.  Mawley  340 

Bowyer's  Case  327 

Bowyer  v.  Cook  392,  393 

Boyce  v.  Whitaker  365 

Braban  v.  Bacon  359,  370 

Bradbnrn  v.  Kennerdale  302 

Braddish  v.  Bishop  324 

Bradley  v.  Fisher  69 

Bray  w.  Freeman  332 

Bret  (;.  Audar  374 

Bridgewater  v.  Bythway  296 

Brindley  v.  Dennett  315,  413 

Bristow  I'.  Wright  412,413 

Britton  v.  Cole  296,  3.56 

Broddeck  v.  Briggs  333 

Brooke  v.  Brooke  237 

Brown's  Case  347 


XXII 

Brown  v.  Cornish 

V.  Rands 

Brudnell  v.  Roberts 
Buckingham  v.  Francis 
Buckley  v.  Kenyon 

V.  Rice  Thomas 

Bultivant  v.  Holnian 
Burkley  v.  Wood 
Burrell  v.  Dodd 
Burton  v.  Webb 
Butt's  Case 


TABLE   OP   CASES   CITED. 


The  references  are  to  the  pages 

399 
359 


256 
301 
233 
340,377,378,391 
389 


Cain  v.  C.  &  P.  Telephone  Co. 
Calfe  V.  Nevil 
Calvin's  Case 
Cameron  v.  Reynolds 
CHmpbell  V.  Lewis 

V.  St.  John 

Careswell  i:  Vaughan 
Carlisle  r.  Trears 
Carmack  v.  Gundry 
Carr  r.  Uincliliff 
Carstairs  v.  Stein 
Carver  r.  Pinckney 
Carvick  v.  Blagrave 
Case  V.  Barber 
Casseres  v.  Bell 

Chamberlain  r.  Greenfield,  337, 338,  379 

380 
Chandler  v.  Roberts 
Chapman  v.  Barney 

V.  Pickersgill 

Chasemore  v.  Richards 
Chatland  v.  Thornly 
Cheasley  v.  Barnes 
Childes  v.  Westcot 
Church  V 


82 
108 

324,  333 
240 
237 

293,  294 
351 
335 
413 
411 
210 
428 
267,  297,  299 
381 
369 


Cowper  V.  Garbett 

Craft  V.  Boite 

Crispin  v.  Williamson 

Crogate's  Case 

Cromwell's  (Lord)  Case 

Crosse  v.  Hunt 

Crosskeys  Co.  v.  Rawlings 
300    Croucher  v.  Oldfield 
347    Cryps  v.  Bay n  ton 
372    Cudlip  V.  Rundle 
382    Cuppledick  v.  Terwhit 

Curwen  v.  Salkeld 

Cutforthay  v.  Taylor 

Cutter  V.  Powell 

V.  Southern 


387 

101 

369,  370 

12 

398 
287,  357 

350 
Brownwick,  370,  371,  372, 

378 

Clarke  v.  Hougham  204 

Clinton  (Lord)  v.  Morton  319 

Clue  V.  Baily  234 

Cocker  v.  Crompton  285 

Codner  v.  Dalby  359 

Colborne  v.  Stockdale  298 

Cole  V.  Hawkins  407 

Collet  V.  Keith  (Lord)  355,  357 

- —  V.  Shrewsbury  [Bailiffs  of]       362 
Collins  V.  Blantern  244  245 

Colt  r.  Coventry  (Bishop  of)  '232 

Colthirst  V.  Bejushin 
Colton  V.  Goodridge 
Cook  V.  Cox 

V.  Gerrard 

Cooke  V.  Birt 
Cooper -r.  Cliitty 

V.  Monke 

Cornwallis  v.  Savery, 


Cotes  V.  Michill 
Couling  V.  Coxe 
Courtney  v.  Phelps 


383 

187,  245 

388,  391 

207 

334 

91 

384 

290,  292,  304. 

370,  371 

356 

213 

260,  387 


Dale  v.  Phillipson 

Dally  V.  King 

Darby  v.  Boucher 

Davies  v.  Aston 

Davis  V.  Noake 

Decker  v.  Pope 

Denham  v.  Stephenson      348, 

Denison  v.  Richardson 

Derisley  v.  Custance  351, 

De  Wolf  V.  Bevan 

Deybel's  Case 

Digby  V.  Fitzharbert 

Dike  V.  Ricks 

Dobbs  V.  Edmunds 

Dodd  V.  Kyffin 

Doe  r.  Ploughman 

Doulson  V.  Matthews 

Dovaston  v.  Payne      344,  368, 

Dow  dale's  Case 

Dowland  v.  Slade 

Dowman's  Case 

Draper  v.  Garratt 

V.  Glassop 

Dudlow  v.  Watchorn 
Duffield  r.  Scott 
Dumsday  v.  Hughes 
Dundass  v.  Weymouth  (Lord) 
Dunstall  v.  Dunstall 
Dyster  v.  Battye 


252 

326,  327 

332,  339 

252,  254 

240 

265,  269 

259 

347 

370 

354 

307 

324 

402 

88,89 

405 

337 
391 
245 
301 
391 
85 

353,  378 
334 

353,  378 
311 

364.  366 

264,  292 
263 
389 
247 
336 
330 

383,  384 
333 
391 
362 
332 
246 

403,  407 

401,  402 

348 

412 

389 

391,  392 


Eaton  v.  Southby  362,  363 

Eden's  Case  327 

Edward  v.  Watkln  417 

Ellison  V.  Isles  287 

Elwis  r.  Lombe  285 

Emerton  v.  Selby  267 

Essington  v.  Boucher  307 

Evans  v.  Prosser  897 

V.  Stevens  424 

Evers  (Lord)  v.  Buckton  359 
Executors  of  Grenelefe,  Case  of 
the 


Fairclaim  v.  Shamtitle 
Finlay  ik  Chirney 


308 

98 
118 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


XX  111 


Fisher  v.  Pimbley  403,  407 

Fits  V.  Freestone  248 

Fitzpatrick  v.  Robinson  359 

Fletcher  v.  Pogson  237,  383 

Foden  v.  Haines  266 

Foster  v.  Jackson  235 

Fowle  V.  Welsh  237 

Francis  Leke's  (Sir)  Case  299 

Freeman  i\  Blewett  357 

Fulmerston  v.  Steward  384,  406 


29], 
378, 


274, 


Gabell  v.  Shaw 
Gainsford  v.  Griffith 
Gale  V.  Read 
Gayle  v.  Betts 
Georgia  v.  Brailsford 
Gibbs  V.  Merrell 
Giffard  v.  Perkins 
Gilbert  v.  Parker 
Gladhill,  ex  parte 
Gledstane  v.  Hewitt 
Godfrey  v.  Saunders 
Godson  V.  Good 
Goodday  v.  Michell 
Goodtitle  u.  Otway 
Goram  v.  Sweeting 
Gordon  v.  Ellis 
Gourney  v.  Fletcher 
Govett  V.  Radnidge 
Granger  v.  George 
Green  v.  Cole 
Greene  v.  Jones 
(xreenhow  v.  Ilsley 
Griffitli  V.  Crockford 
Griffitiis  V.  Eyles 
Grimstead  i'.  Marlowe 
Grimwood  v.  Barritt 
Grocers'  Co.  v.  Canterbury  (Arch- 
bishop of)  '         268, 
Groenvelt  v.  Burnell  362, 
Guilford  (Mayor  of)  v.  Clarke 
Gundry  v.  Feltham 


79, 


257, 
342, 

388, 


315 

375 
379 
288 
208 
245 
40!) 
270 
21 
56 
60 
400 
383 
336 
299 
214 
389 
112 
432 
258 
285 
368 
293 
389 
342 
335 

269 
370 
366 
234 


Haiton  v.  Jeffreys 
Hallet  V.  Byrt 
Hallowes  ?\  Lucy 
Halsey  v.  Carpenter 
Hammond  v.  Colls 
Hamond  v.  Dod 
Hampson  v.  Bill 
Handlord  v.  Palmer 
Hard's  Case 
Harding  v.  Holmes 
Hardy  v.  Cathcart 
Harebottle  ).'.  Placock 
Harlow  v.  Wright 
Harmer  v.  Rows 
Harpur's  Case 
Harris  v.  Ferrand 
V.  Pett 


174,  322 
273,  274,  408 
397 
334,  359 
301 
384 
421 
369 

54 
407 
335 

45 
384 
245 
336 
267 
874 


Hart  ?.-.  Longfield 
Hartley  v.  Herring 
Hastrop  v.  Hastings 
Hatton  V.  Morse 
Hawe  i\  Planner 
Hawke  v.  Bacon 
Hawkins  v.  Eckles 
Haworth  v.  Spraggs 
Hayes  v.  Bryant 
Hay  man  v.  Gerrard 
Heard  v.  Baskerville 
Hedges  v.  Chapman 
Helier  v.  Whytier 
Helliot  V.  Selby 
Henderson  i\  Withy 
Hendy  v.  Stephenson 
Henry  v.  Earl 
Henry  Pigot's  Case 
Herlakenden's  Case 
Herries  v.  Jamieson 
Herring  v.  Blacklow 
Hickman  v.  Walker 
Higgins  V.  Highfield 
Hill  V.  Montagu 

V.  Saunders 

Hillier  v.  Plympton 
Hinton  i\  Roffey 
Hoe's  Case 
Holding  V.  Haling 
Holland  v.  Shelley 
Holler  V.  Bush 
Holmes  v.  Rhodes 
Holt's  Lessee  v.  Smith 
Hore  V.  Chapman 
Home  V.  Lewin 
Horse  fall  v.  Testar 
Hotliam  V.  East  India  Co, 
Howel  V.  Richards 
Huddart  v.  Rigby 
Hudson  V.  Jones 
Huggins  V.  Wiseman 
Huglies  V.  Phillips 
Humphreys  v.  Bethily 

V.  Churchman 

Huntingtower  (Lord)  v. 

Hussey  v.  Jacob 

V.  More 

Hutchinson  v.  Jackson 
V.  Piper 


Ildeeton  v.  Ilderton 
Isaac  V.  Farrer 


Jackson  v.  Pesked 

V.  Wickes 

Jacobs  V.  Nelson 
J'Anson  v.  Stuart 
Jaques's  Case 
Jenkins  v.  Edwards 


304, 


273, 
336, 


288, 


279, 
260, 

361, 


273,  408,  410, 


366, 

370, 

236,  303, 

Gardiner 
237, 


317 

377 
235 
274 
435 
285 
344 
424 
373 
292 
9 
401 
264 
416 
290 
346 
280 
244 
280 
318 
387 
404 
336 
370 
352 
373 
361 
357 
333 
427 
411 
374 
98 
389 
261 
204 
368 
390 
287 
281 
371 
264 
304 
305 

383 
411 
420 
382 
340 


323 
252 


237, 
361, 


238 
293 
384 
370 
409 
319 


XXIV 

Jeriny  v.  Jenny 
Jevoiis  V.  Harridge 
Johns  V.  Whitley 
Johnson  v.  Picket 

V.  Warner 

Johnstone  v.  Sutton 
John  Trollop's  Case^ 
Jones  ;;.  Powell 
Judin  V.  Samuel 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


362,  370 
187 

306,  346 
335 
358 
237 
393 
295 
402 


Keane  v.  Boycott  245 

Keating  v.  Irish  370 

Kempe  v.  Crews  214 

Kenicot  i'.  Bogan  268 
Kennedy  v.  Georgia  State  Bank         10 

Kent  V.  "Hall  214 

Kerry  (Earl  of)  v.  Baxter  374,  375,  377 

Kettle  v.  Bromsall  57 

Keyworth  ?-.  Hill  237 

King  v.  Frazer  391 

V.  Williams  194 

King,  The,  v.  Brereton  388,  389 

V.  Burdett  324,  333 

V.  Chester  (Bishop  of)  281,  334, 

336 

V.  Holland  324,  334 

V.  KnoUys  366 

V.  Lyme  Regis            364,  365,  384 

V.  Shakespeare  400 

V.  Stevens  382 

V.  Worcester  (Bishop  of)  264 

King  qui  tam  v.  Bolton  265 

Kingdon  v.  Nottle  123 

Kinlyside  v.  Thornton  78,  142 

Kinnersley  c.  Cooper  297 

Kirwan  v.  Raborg  101 

Knight  V.  Farnaby  330 

v.  Synims  336,  337 

Kniglits  V.  Quarles  123 

Knox  V.  Summers  159 


342, 


Lake  v.  Raw 
Lamb  ' ,  IMills 
Lambert  v.  Cook 

V.  Prince 

Lane  ?.'.  Alexander 

Langford  v.  Webber 

Latham  v.  Rutley 

Lathbury  v.  Arnold 

Lawley  v.  Gattacre 

Lay  ton  i'.  Grindall 

Lea  V.  Luthell  386 

Le  Bret  v.  Papillon     235,  397,  399,  400 

Ledesham  v.  Lubram  386 

Lee  V.  .Clarke  246 

I'.  Rogers  407 

Leech  v.  Widsley  296 

Leneret  v.  Rivet  359,  374 

Lethbridge  v.  Winter  285 

Lewis  V.  Preston  362 


367 
355,  356 
264 
287 
298 
343 
204 
349 
337 
338 


Leyfield's  Case  275,  426,  428 

Lightfoot  v.  Brightman  237 

Littleton  v.  Richardson  184 

Lodge  V.  Frye  347 

London  (City  of)  v.  Gorry  85 

Long's  Case  383 

Longueville  v.  Thistleworth  420 

Lumly  V.  Gye  82 


Lynnet  v.  Wood 


408,  409,  410 


Magetjder  v.  Belt  101 

Mainwaring  v.  Newman  427 
Manser's  Case                      304,  373,  383 

March  v.  Freeman  54 

Market  v.  Johnson  280 

Marsh  v.  Bulteel  235,  369 

V.  Newman  427 

Marshall  i-.  Riggs  389 

Martin  v.  Kesterton  285 

V.  Smith  388 

Matthew  v.  Hassell  45 

Matthews  v.  Carey  355,  358 

McFaul  V.  Ramsey  8 

Medina  v.  Stoughton  395,  400 

INIeeke  v.  Oxlade  315 

Mellor  V.  Spateman  440 

r.  Walker  258 

Merceron  v.  Dowson  232 

Meredith  v.  Alleyn  288,  289 

Merington  v.  Becket  433 

Meriton  v.  Briggs  270 

Middleton  v.  Price  357 

Millner  v.  Crowdall  426 
IVIints  V.  Bethil    370,  371,  372,  373,  374 

Mole  V.  Wallis  405 

Money  r.  Leach  206 

Moor  V.  Pudsey  297 

Moore  v.  Plymouth  (Earl  of)  390 

V.  Taylor  ?i7 

Morant  v.  Sign  278 

Moravia  v.  Sloper  357 

Morewood  v.  Wood  302 

Morgan  v.  Man  407 

Morlcy  v. 280 

INIorrow  v.  Belcher  307 

Mors  I'.  Thacker  389 

Morse  v.  James  356,  358 

Moses  V.  Macferlan  86 

r.  United  States  205 

Mostyn  v.  Fabrigas  323 

Mure  V.  Kaye  361 

Murray  v.  East  India  Co.  386 

V.  Stair  (Earl  of)  244 

Myn  V.  Cole  384 


Nash  v.  Towne  205 

Nelson  v.  Griffiths  315 

Nerot  V.  Wallace  237,  238 

Nevil  and  Cook's  Case  267 

Nevill  V.  Soper  382 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


Newcastle  (Duke  of)  v.  Wright      348, 

353 
Newhall  v.  Barnard  298 

Newton  v.  Stubbs  391 

Nichol  V.  Wilton  413 

Nichols  V.  Pawlett  333 

Nicholson  v.  Simpson  281,  288 

Northumberland's    (Countess  of) 

Case  308 

Nowlan  v.  Geddes  234,  399,  400 


O'Brien  v.  Saxon  252,  253 

Oglethorp  v.  Hyde  375,  376 

Onslow  V.  Smith  393 

Osborne  v.  Rogers  301 

Osway  V.  Bristow  343 

Outram  r.  Morewood  271 

Owen  V.  Reynolds  406 


Palmer  v.  Ekins 

V.  Lawson 

Paramore  i\  Johnson  246, 

Parkes  v.  Middleton 

Parks  V.  Ross 

Partridge  v.  Strange  365,  377, 

Pasley  v.  Freeman 

Peacock  v.  Bell  and  Kendal 

Penn  v.  Ward 

Phillips  V.  Fielding 

V.  Homfray 

V.  Howgate  287, 

Piggot's  Case 

Pigot's  (Henry)  Case 

Pillans  V.  Van  Mierop 

Pippet  V.  Hearn  237, 

Pitt  r.  Knight 

V.  Russell 

Plasket  V.  Beeby 
Piatt  V.  Hill 
Playter's  Case 
Plomer  v.  Ross 
Pope  V.  Skinner 

V.  Tillman 

Porter  v.  Gray 

Powdick  V.  Lyon 

Powell  V.  Fullerton 

Powers  V.  Cook  269,  270, 

Poynter  v.  Poynter 

Praed  v.  Cumberland  (Duchess  of) 


Price  V.  Brown 

V.  Fletcher 

V.  Seaman 

Priddie  and  Napper's  Case 
Pullin  V.  Nicholas 
Purcell  V.  Bradley 
Pyster  v.  Hemling 


QoEEN  (The)  V.  Dale 


412, 
268, 


299 
367 
249 
370 
207 
378 

12 
446 
385 
412 
118 
314 
235 
244 

84 
391 
293 
353 
393 
365 
337 
360 
267 
337 
349 
402 
399 
393 
384 

407 
205 
413 
237 
302 
386 
383 
347 


339 


Raborg  v.  Peyton 

Radford  v.  Harbyn 

Ralph  Bovy's  (Sir)  Case 

Rama  Chitty  v.  Hume 

Rann  v.  Hughes 

Read's  Case 

Read  v.  Brookman 

Renno  v.  Bennett 

Rich  V.  Pilkington 

Richards  r.  Hodges  291, 

Richardson  v.  Oxford  (Mayor 

Richley  v.  Proone 
Ricketts  v.  Loftus 
Rider  v.  Smith 
Riggs  V.  Bullingham 
Rivers  v.  Griffith 
Robb  V.  Vos 

Robert  Bradshaw's  Case 
Robert  Pilford's  Case 
Roberts  v.  Mariett 
Robinson  v.  Corbett 

V.  Rayley        8,  253,  261, 

V.  Smith 

Roe  V.  Lord 

V.  Vernon 

Rose  V.  Standen 
Routh  V.  Weddell 
Rowe  V.  Roach 

V.  Tutte 

Rowland  v.  Veale 


XXV 

54 

279 

296,  367 

320 

84 

297 

428 

254 

235 

373,  403 

of)    265, 

268 

433 

296 

351,  378 

379 

339 

115 

378,  379 

418 

404 

271,  272 

310,  311 

347 

348 

347 

383 

235 

340 

401 

356,  357 


Sabine  v.  Johnstone 

St.  Germains  (Earl  of)  v.  Willan 

St.  John  V.  St.  John  366^ 

St.  Louis  &c.  Ry.  v.  McBride 

Salisbury's  (Bishop  of)  Case 

Salter  v.  Purchell 

Saunders's  Case 

Saunders  v.  Hussey 

Sayre  r.  Minns 

Scavage  r.  Hawkins 

Scilley  v.  Dally 

Scott  V.  Brest 

Searl  ;;.  Bunnion 

Selby  V.  Bardons 

Shad  well  v.  Berthoud 

Shaw  ?'.  Alvanley  (Lord) 

Sheers  ?'.  Brooks 

Shepheard's  Case 

Sherland  r.  Heaton 

Shum  V.  Farrington 

Sicard  ;;.  Davis 

Skevill  V.  Avery 

Slade's  Case 

Slade  V.  Dowland 

IK  Drake 

Smith  V.  Bellows 

V.  Dovers 

V.  Feverell 


408,  409, 

344: 

290,  292; 

346 

343,  346 


370 
343 


3.  385 


395 
280, 
401 
367 
159 
379 
254 
410 
345 
360 
345 
.347 
324 
,347 
252 
433 
320 
369 
347 
389 
372 
101 
347 
85 
391 
432 
101 
262 
368 


XXTl 


TABLE   OF   CASES   CITED. 
The  references  are  to  the  pages. 


Smitli  V.  Yeomans  432 

Spieres  v.  Parker  237 

Stebbins  v.  Insurance  Co.  101 

Stephens  i».  Arthur  422 

Stibbs  V.  Clough  187 

Stone  V.  Bliss  359 

Stowell  V.  Zouch  (Lord)  366,  367 

Street  v.  Hopkinson  399,  400 

V.  Rigby  18 

Stroud  V.  Gerard  (Lady)  390,  391 
Svvinnerton  v.   Stafford   (Marquis 

of)  210 

Symmons  v.  Knox  332 


Talbot  v.  Hopewood 

400 

Tampian  v.  Newsam 

421 

Tatem  v,  Perient 

299 

Taylor  v.  Cole 

287 

V.  Eastwood 

278 

342 

V.  Needham 

271 

272 

V.  Smith 

287 

Thomas  r.  Hanscombe 

315 

V.  Heathorn 

285 

280 

V.  Vandermoolen 

433 

Thornton  v.  Adams 

383 

Thrale  v.  London  (Bishop  of) 

265 

Tippet  V.  May 

280 

Tipping  V.  Johnson 

293 

Titley  v.  Foxall 

358 

Tolputt  V.  Wells 

403 

Tomlin  v.  Burlace 

388 

Took  V.  Glascock 

398 

Topping  V.  Fuge 

431 

Trevilian  v.  Seccomb 

304 

Trueman  v.  Hurst 

401 

Turner  v.  Felgate 

356 

Union  Pacific  R.  R.  Co.  v.  Wyler    405 


Veale  v.  Warner 
Vere  v.  Smith 
Vincent  v.  Beston 
Vooght  V.  Winch 
Vynior's  Case 


Wade  v.  Baker 
Wallis  V.  Savil 
Walsingham's  Case 
Walters  v.  Mace 
Warbrook  v.  Griffin 
Ward  &  Blunt's  Case 
Ware  v.  Boydell 


897,  398 

290,  291,  406 

280 

271 

848,  369 


847 
400 
366,  367 
340 
85 
411 
824 


Waring  v.  Griffiths  342 

Warner  I'.  Wainsford  408,  411 

Washbourne  v.  Barrows  252 
Washington,  &c.,  S.  P.  Co.  v.  Sickles  229 
Washington  Gas  Co.  v.  District  of 

Columbia  184 

Wats  V.  King  280 

Webb  V.  Martin  401 

Webber  v.  Tivill  401 

Weeks  v.  Peach  398,  399 

Weltale  v.  Glover  289 

West  V.  Troles  317 

Weston  V.  Charleston  20 

V.  Mason  237,  238 

Wetherell  i'.  Clerkson  379 

V.  Howard  267 

Wettenhall  v.  Sherwin  389 

Whelpdale's  Case  245 

White  V.  Cleaver  373,  374 

Whitehead  v.  Buckland  290,  293 

Whitwell  V.  Bennett  340 

Wiat  V.  Essington  337 
Wiggin's  Ferry  Co.  v.  0.  &  M.  Ry.  9 
Wilcox  V.  Skipwith  (servant  of)       281 

Wilder  v.  Handy  389 

Wilkes  V.  Williams  423 

Williams  v.  Fowler  367 

Wilson  i:  Kemp  292,  399 

V.  Hobday  369,  370 

Wimbish  v.  Tailbois  377,  378 

Wimbleton  v.  Holdrip  359 

Winstone  v.  Linn  403 

Wiscot's  Case  350 

Witham  v.  Lewis  215 

Witherley  v.  Sarsfield  388 

Witts  V.  Polehampton  214 

Wood  V.  Budden  299,  300 

V.  Butts  386,  387 

r.  Hawkshead  407 

Woodcock  V.  Cole  359 

Woolaston  v.  Webb  379 

Wright  V.  Clements  391 

V.  Ramscot  331 

Wyat  V.  Aland  382 


Yates  v.  Been 

V.  Carlisle 

Young  V.  Gadderer 

■;;.  Rudd 

V.  Ruddle 

V.  Watson 


Zouch  v.  Parsons 
Zouch  &  Bamfield's  Case 


244 
412,  413 
433 
297 
297 
417 


245 

387 


COMMON-LAW  PLEADING, 


INTRODUCTION. 

In  an  address  delivered  in  1889,  by  Lord  Chief  Justice 
Coleridge,  before  the  law  students  of  Birmingham,  he  con- 
trasted the  law  as  it  existed  in  England  in  1847  with  its  con- 
dition at  the  time  he  spoke ;  incidentally,  he  referred  to  the 
late  Baron  Parke,  of  whom  he  said :  "  The  ruling  power  in 
the  courts  in  184T  was  Baron  Parke,  a  man  of  great  and 
wide  legal  learning,  an  admirable  scholar,  a  kind  hearted  and 
amiable  man,  and  of  remarkable  force  of  mind.  These  great 
qualities  he  devoted  to  heightening  all  the  absurdities  and  con- 
tracting to  the  very  utmost  the  narrowness  of  the  system  of 
special  pleading.  The  _client  was  unthought  of.  .  .  ._  The 
right  was  nothing,  the  mode  of^statiiigj^veryth^ng."  ^  After 
speaking  further  of  Baron  Parke's  devotion  to  the  technical- 
ities of  special  pleading,  Lord  Coleridge  resumed  :  "  Peace  be 
with  him.  He  was  a  great  lawyer,  a  man  of  high  character 
and  powerful  intellect.  No  smaller  man  could  have  produced 
such  results.  If  he  ever  were  to  revisit  the  glimpses  of  the 
moon,  one  shudders  to  think  of  his  disquiet.  No  absque-hoc, 
no  et  non,  no  color,  express  or  implied,  given  to  trespass;  no 
new  assignment.  Belief  in  the  great  doctrine  of  a  negative 
pregnant  no  longer  necessary  to  legal  salvation,  and  the  very 
nice  question,  as  Baron  Parke  is  reported  to  have  thought, 
whether  you  could  reply  de  injuria  to  a  plea  of  deviation  in  an 
action  on  a  marine  policy  not  only  still  unsolved,  but  actually 
considered  not  worth  solution."  ^  Of  other  judges  and  advo- 
cates eminent  in  1847,  but  since  dead,  Lord  Coleridge  said: 

1  The  Contemporary  Review,  June,         *  Ibid.  801. 
1890,  799. 

1 


2  COMMON-LAW   PLEADING. 

"And  with  these  men  the  system  under  which  they  flour- 
ished has  gone  to  rest  too;  parties  are  examined,  husband 
and  wife  are  heard.  Special  pleading  finds  no  refuge  upon 
the  habitable  globe  except,  as  I  believe,  in  the  State  of  New 
Jersey  in  America."  ^  In  confirmation  of  Lord  Coleridge's 
statement,  we  find  that  the  Common-Law  Procedure  Act  of 
1852,  and  the  rules  of  court  made  pursuant  thereto,  abolished 
all  common-law  forms  of  actions,  and  substituted  therefor  the 
simplest  possible  statements  of  causes  of  demand.  It  may 
be  accurately  said  that  the  tendency  of  English  legislation 
is  to  the  destruction  of  the  science  of  special  pleading  at  the 
hands  of  its  creators.  Ifc^js  .threa^ejie^d  wit^^^^^  like  fate,  in 
this  country.  "When,  therefore,  it  is  proposed  to  the  student 
that  he  shall  study  special  pleading  as  it  was  known  at  com- 
mon-law, he  may  well  ask  wliy  he  should  fit  himself  with  an 
outworn  and  a  cast-off  garment.  He  may  apparently  well  think 
that  time  and  energy  devoted  to  such  a  subject  are  wasted. 

It  is  said  by  the  most  famous  law-writer  of  this  century, 
Savigny,  that  "  The  study  of  the  law  is  of  its  very  nature 
exposed  to  a  double  danger ;  that  of  soaring  through  theory 
into  the  empty  abstractions  of  a  fancied  law  of  nature,  and 
that  of  sinking  through  practice  into  a  soulless,  unsatisfying 
handicraft."  ^  Only  those  students  who  have  no  higher  ambi- 
tion than  to  be  mere  craftsmen,  and  an  inferior  order  even  of 
these,  can  aiJord  to  refuse  the  study  of  special  pleading  be- 
cause, in  their  opinion,  it  may  not  be  of  practical  use  to  them 
to-day.  I  purpose  to  show  briefly  in  this  introduction  how 
vitally  this  study  is  connected  with  the  development  of  Eng- 
lish law,  and  how  indispensable  a  part  of  legal  education  it 
still  is,  and  must  ever  be,  wherever  the  common  law  of  Eng- 
land is  in  force. 

I.  The  remedial  law  of  England  developed  with,  and  was 
stimulated  and  enlarged  by,  the  development  of  special  plead- 
ing. Littleton,  writing  in  the  reign  of  Edward  IV.,  said  : 
"  And  know  ye  this,  my  son,  that  it  is  one  of  the  most  honor- 
able, laudable,  and  profitable  things  in  our  law  to  have  the 

1  The  Contemporary  Review,  June,  ^  Howe's  Studies  in  the  Civil  Law,  6. 
1890,  802. 


INTEODUCTION.  3 

science  of  well  pleading  in  actions  real  and  personal ;  and 
therefore  I  counsel  thee  especially  to  set  all  thy  courage  and 
care  to  learn  that,  &c."^  That  special  pleading  did  not  de- 
cline in  importance  between  his  time  and  that  of  Lord  Coke  is 
evident  from  what  the  latter  has  said  of  it  in  his  judicial 
decisions  and  in  his  great  Commentary.  "  Good  pleading," 
says  he,  "  is  Lapis  Lyclius,  the  touchstone  of  the  true  sense 
and  knowledge  of  the  common  law."  ^  Again,  in  the  Preface 
to  his  Commentary  upon  Littleton,  he  speaks  of  "  The  rules 
of  good  pleading  (the  heart  string  of  the  common  law)."  At 
page  115  b  of  the  same  Commentary,  he  has  these  words : 
"  Note,  one  of  the  best  arguments  or  proofes  in  law  is  drawn 
from  the  right  entries  or  course  of  pleading ;  for  the  law 
itselfe  speaketh  by  good  pleading;  and  therefore  Littleton 
here  saith,  '  it  is  proved  by  the  pleading,'  &c.,  as  if  pleading 
were  ipsius  legis  viva  voxT  It  is  said  in  Hobart's  Reports 
that  truth  is  the  goodness  and  virtue  of  pleading,  as  certainty 
is  the  grace  and  beauty  of  it.^ 

It  may  be  thought  that  these  are  extravagant  expressions 
of  men  who  were  educated  to  see  excellence  in  anything  that 
was  technical  and  abstruse.  When  Littleton  says  that  the 
law  is  proved  by  the  pleading,  and  when  Coke  adds,  approv- 
ingly, "  as  if  pleading  were  the  living  voice  of  the  law  itself," 
they  are  not  using  mere  figures  of  rhetoric.  Accordingly, 
we  find  in  the  recent  work  upon  English  law,  by  two  men 
who  have  done  more  than  all  others  to  make  its  origin 
and  growth  plain  (I  refer  to  Pollock  and  Maitland's  History 
of  English  Law),  that  the  development  of  rights  has  de- 
pended upon  the  development  of  actions.  In  that  work 
its  authors  show  in  great  detail  how  closely  advances  in 
the  conception  of  right  have  been  associated  with,  and 
enforced  by,  corresponding  advances  in  pleading.  "  Our 
forms  of  action  are  not  mere  rubrics  nor  dead  categories ; 
they  are  not  the  outcome  of  a  classificatory  process  that  has 
been  applied  to  pre-existing  materials ;  they  are  institutes  of 
the  law  ;   they  are,  we  say  it  without  scruple,  living  things."  * 

1  Tenures,  sec.  534  (Tomlins).  ^  Slade  v.  Drake,  Hob.  295. 

2  10  Co.  Rep.  29  b.  «  P.  &  M.  Hist.  II.  559. 


4  COMMON-LAW   PLEADING. 

"  "We  shall  do  well  to  remember  that  the  rule  of  law  was  the 
rule  of  writs."  ^  Bracton,  writing  in  the  reign  of  Henry  III., 
can  still  say,  "  There  will  be  as  many  formulce  of  writs  as 
there  are  kinds  of  actions."  A  little  later  we  shall  have 
to  take  the  tale  of  wi-its  as  the  fixed  quantity,  and  our 
maxim  will  be,  "  There  will  be  as  many  kinds  of  actions  as 
there  are  formulce  of  writs."  ^  Finally,  at  the  conclusion  of 
their  work,  speaking  of  English  law  prior  to  the  time  of 
Edward  I.,  and  resuming  its  influence  upon  the  subsequent 
development  of  that  law,  these  high  authorities  thus  record 
their  judgment :  "  Nor  can  we  part  with  this  age  without 
thinking  once  more  of  the  permanence  of  its  work.  Those 
few  men  who  were  gathered  at  Westminster,  around  Pateshull 
and  Raleigh  and  Bracton,  were  penning  writs  that  would  run 
in  the  name  of  kingless  commonwealths  on  the  other  shore  of 
the  Atlantic  Ocean ;  theT/  were  making  right  and  wrong  for  us 
and  for  our  children.''^  ^ 

Consonant  with  these  opinions  is  what  an  eminent  Ameri- 
can jurist  has  written :  "  However  much  we  may  codify  the 
law  into  a  series  of  seemingly  self-sufficient  propositions,  those 
propositions  will  be  but  a  phase  in  a  continuous  growth.  To 
understand  their  scope  fully,  to  know  how  they  will  be  dealt 
with  by  judges  trained  in  the  past  which  the  law  embodies,  we 
must  ourselves  know  something  of  that  past.  The  history  of 
what  the  law  has  been  is  necessary  to  the  knowledge  of  what 
the  law  is  "  * 

IT.  The  study  of  special  pleading  is  not  only  essential  to  a 
correct  understanding  of  the  historical  development  of  the 
common  law ;  it  is  most  admirable  and  essential  as  an  intel- 
lectual training.  No  man  can  be  a  strong  reasoner  who  does 
not  possess  natural  or  acquired  logic.  No  man  can  be  a 
strong  lawyer  who  has  not,  in  addition  to  this  logic,  a  clear 
knowledge  of  the  logic  of  the  law ;  and  special  pleading  is  the 
logic  of  the  law. 

The  real  function  of  education  is  not  to  charge  the  mind 
with  facts  ;    its   object   is,   as   the   etymology  of  the  word 

1  p.  &  M.  Hist.  II.  56  L  3  Ihid.  670. 

2  Ibid.  562.  *  Holmes,  C.  L.  37. 


INTRODUCTION.  5 

expresses,  to  draw  forth  and  develop  all  of  the  mental  powers 
which  the  student  has.  This  result  cannot  be  accomplished 
by  mere  study.  The  mind  may  be  a  magazine  charged  with 
all  sorts  of  knowledge,  and  yet  not  able  to  form  a  clear  idea, 
or  to  express  lucidly  an  idea  when  formed ;  still  less  able  to 
reason  upon,  to  develop  and  to  defend  it.  For  this  purpose 
something  more  than  study  is  necessary.  It  is  related  of 
John  C.  Calhoun,  that,  when  a  young  man,  he  devoted  an 
hour  every  morning  to  a  solitary  walk,  during  which  he  dis- 
cussed, in  every  conceivable  phase,  some  one  proposition.  He 
argued  it  on  the  one  side  and  on  the  other.  He  held  it  up,  as 
it  were,  to  the  sun,  and  endeavored  to  see  through  what  thin 
places  the  light  would  pierce  and  betray  weakness  of  struc- 
ture. He  pressed  his  mind  against  it  as  a  farmer's  boy  holds 
the  edge  of  an  axe  against  a  grindstone.  Fatiguing  as  the 
process  was,  he  persevered  in  it  day  after  day  and  year  after 
year  until,  as  a  result,  he  developed  mental  powers  which,  for 
clearness  of  conception,  for  lucidity  and  conciseness  of  expres- 
sion, for  rigid  sequence  of  argument,  and  for  strength  of  con- 
struction, were  absolutely  unrivalled.  Such  a  process  the 
student  should  aim  to  follow ;  it  is  the  study  of  the  science 
of  special  pleading,  above  all  others,  which  will  aid  him  in  this 
pursuit.  He  should  ever  bear  in  mind  the  following  advice 
of  Lord  Coke  :  "  Mine  advice  to  the  student  is,  that  before  he 
read  any  part  of  our  Commentaries  upon  any  section,  that 
first  he  read  again  and  again  our  author  himself  in  that 
section,  and  do  his  best  endeavors,  first  of  himself,  and  then 
by  conference  with  others  (which  is  the  life  of  study^,  to  under- 
stand it,  and  then  to  read  our  Commentary  thereupon,  and  no 
more  at  any  one  time  than  he  is  able  with  a  delight  to  bear 
away,  and  after  to  meditate  thereon,  which  is  the  life  of  read- 
ing." ^  Clearly,  Lord  Coke  knew  the  proper  process  for  the 
development  of  the  mind.  The  same  thought  is  most  admir- 
ably expressed  by  Sir  William  Hamilton  in  the  introductory 
chapter  to  his  Lectures  upon  Metaphysics,  which  chapter 
should  be  carefully  read  and  pondered  on  by  every  teacher 
and   student  of  law.     "  I  must  regard  the  main  duty  of  a 

1  Co.  Litt.  Preface,  xlii. 


6  COMMON-LAW  PLEADING. 

professor  to  consist  not  simply  in  communicating  informa- 
tion, but  in  doing  this  in  such  a  manner,  and  with  such  an 
accompaniment  of  subsidiary  means,  that  the  information  he 
conveys  may  be  the  occasion  of  awakening  his  pupils  to  a 
vigorous  and  varied  exertion  of  their  faculties.  Self-activity 
is  the  indispensable  condition  of  improvement ;  and  education 
is  only  education,  that  is,  accomplishes  its  purpose  only,  by 
affording  objects  and  supplying  incitements  to  this  spontaneous 
exertion.  Strictly  speaking,  every  one  must  educate  himself. 
All  profitable  study  is  a  silent  disputation  —  an  intellectual 
gymnastic ;  and  the  most  improving  books  are  precisely  those 
which  most  excite  the  reader  to  understand  the  author,  to 
supply  what  he  has  omitted,  and  to  canvass  his  facts  and 
reasonings.  To  read  passively  to  learn  is,  in  reality,  not  to 
learn  at  all.  In  study,  implicit  faith,  belief  upon  authority,  is 
worse  even-  than,  for  a  time,  erroneous  speculation.  To  read 
profitably  we  should  read  the  authors  not  most  in  unison  with, 
but  most  adverse  to,  our  opinions ;  for  whatever  may  be  the  case 
in  tlie  cure  of  bodies,  enantiopathy,  and  not  homoeopathy,  is  the 
true  medicine  of  minds.  Accordingly,  such  sciences  and  such 
authors  as  present  only  unquestionable  truths,  determining  a 
minimum  of  self-activity  in  the  student,  are,  in  a  rational 
education,  subjectively  naught.  Those  sciences  and  authors, 
on  the  contrary,  who  constrain  the  student  to  independent 
thought,  are,  whatever  may  be  their  objective  certainty,  sub- 
jectively, educationally  best."  ^  The  science  of  special  plead- 
ing cannot  be  mastered  by  one  who  merely  studies.  It  must, 
as  Lord  Coke  says,  be  learned  by  conference  with  others,  and 
after  meditation.  How  the  truth  of  this  was  appreciated  by 
even  a  man  of  genius,  who  would  popularly  be  supposed  above 
such  aids  as  Lord  Coke  has  indicated,  is  evident  from  what  was 
said  before  the  Court  of  Common  Pleas  of  Hampton,  Massa- 
chusetts, on  the  occasion  of  Daniel  Webster's  death.  "  It  was 
a  year  or  two  since  that  he  [Webster]  spoke  of  having  found 
the  Reports  of  Saunders  when  he  was  a  student,  accessible 
only  in  their  original  Latin,  and  without  the  notes  with  which 
Sergeant  Williams  has  since  enriched  them,  and  he  remarked  : 

1  Hamilton's  Metaphysics  (Bowen),  11. 


INTRODUCTION.  7 

'  I  sat  down  and  made  a  translation  of  them  into  English,  and  I 
have  it  now,  and  it  was  in  that  way  that  I  made  myself 
familiarly  and  greatly  acquainted  with  the  language  of  plead- 
ing.' "  ^  On  this  fact  Wallace,  in  his  article  upon  Saunders' 
Reports,  comments  as  follows :  "  Daniel  Webster,  it  is  said, 
once  translated  the  Reports  of  Saunders  into  English.  The 
book  which  trained  Webster's  mind  to  its  '  prodigious  powers 
of  legal  logic^  or  in  which  Ms  intellect  found  a  dialectic  har- 
mony, may  well  receive  the  homage  of  the  world."  ^  As  is  well 
known,  these  volumes  of  Reports  are  the  great  repository  of 
cases  involving  points  of  special  pleading.  It  is  related  of 
one  of  the  greatest  lawyers  whom  this  country  has  produced, 
the  late  Walter  Jones  of  the  Bar  of  the  District  of  Columbia, 
that  he  wrote  out,  in  all  their  detail,  the  pleadings  of  every 
case  reported  by  Sir  James  Burrow.  Surely  the  doing  of 
such  work  by  two  such  men  is  conclusive  proof  of  its  excel- 
lence as  a  discipline. 

III.  In  addition  to  the  general  mental  training  given  by 
this  study,  there  is  a  particular  advantage  to  be  derived  from 
it,  notwithstanding  the  prevalent  abolition  of  special  pleading 
and  the  substitution  therefor  of  what  is  called  code  pleading. 
No  code  can  mar  the  beauty  of  pleading  based  upon  the  prin- 
ciples of  the  common-law  science.  Just  as  natural  logic  lies 
at  the  basis  of  all  clear  and  effective  discussion  upon  general 
topics,  so  special  pleading  is  the  foundation  of  all  legal  dis- 
cussion. It  is  impossible  that  issues  can  be  properly  pre- 
sented for  decision,  either  by  court  or  jury,  unless,  in  the  first 
place,  the  litigants,  through  their  counsel,  are  capable  of 
clearly  conceiving  the  propositions  of  fact  or  of  law  upon 
which  their  claims  rest.  In  the  second  place,  there  must  be 
a  lucid  and  concise  expression  of  those  propositions.  Such 
expressions  must,  moreover,  be  relevant,  and,  as  far  as  pos- 
sible, single.  After  the  propositions  have  been  once  stated, 
there  must  be  no  departure  from  them.  A  litigant  must  be 
compelled  to  pursue  a  definite  and  consistent  course  from  the 

1  Remarks  of  Reuben  A.  Chapman  New  York  Daily  Times,  October  27, 
upon   the   death   of    Daniel   Webster.     1852. 

2  The  Reporters,  338. 


8  COMMON-LAW  PLEADING. 

time  he  comes  into  court,  until  he  obtains  its  judgment.  He 
cannot  do  this  unless  he  is  thoroughly  acquainted  with  the 
principles  of  special  pleading. 

In  the  sharp  and  hard  competition  of  these  modern  days  at 
the  bar,  the  lawyer  who  is  able  to  present  his  case  in  such 
manner  as  to  enable  the  court  or  jury  to  at  once  possess 
itself  of  the  salient  points  of  the  position  which  he  occupies, 
is  the  lawyer  who  will,  from  the  outset,  secure  the  attention 
of  court  and  bar,  and  who  will  speedily  command  success. 
Sir  William  Jones  had  such  qualities  in  view  when  he  wrote 
as  follows  :  "  The  science  of  special  pleading  is  an  excellent 
logic  ;  it  is  admirably  calculated  for  the  purposes  of  analyzing 
a  cause,  of  extracting,  like  the  roots  of  an  equation,  the  true 
points  in  dispute,  and  referring  them  with  all  imaginable 
distinctness  to  the  court  or  jury.  It  is  reducible  to  the 
strictest  rules  of  pure  dialectics,  and  tends  to  fix  the  attention, 
give  a  habit  of  reasoning  clearly,  quicken  the  apprehension 
and  invigorate  the  understanding."  ^  To  the  same  effect  are 
the  following  observations  of  Lord  Mansfield :  "  The  sub- 
stantial rules  of  pleading  are  founded  in  strong  sense,  and  in 
the  soundest  and  closest  logic,  and  so  appear  when  well  under- 
stood and  explained ;  though,  by  being  misunderstood  and 
misapplied,  they  are  often  made  use  of  as  instruments  of 
chicane."  '^  More  than  one  hundred  years  later,  Mr.  Justice 
Grier,  speaking  for  the  Supreme  Court  of  the  United  States, 
in  the  case  of  McFaul  v.  Ramsey,  thus  said  :  "  This  system  [of 
pleading],  matured  by  the  wisdom  of  ages,  founded  on  princi- 
ples of  truth  and  sound  reason,  has  been  ruthlessly  abolished 
in  many  of  our  States,  who  have  rashly  substituted  in  its 
place  the  suggestions  of  sciolists,  who  invent  new  codes  and 
systems  of  pleading  to  order.  But  this  attempt  to  abolish  all 
species,  and  establish  a  single  genus,  is  found  to  be  beyond 
the  power  of  legislative  omnipotence.  They  cannot  compel 
the  human  mind  not  to  distinguish  between  things  that 
differ.    The  distinction  between  the  different  forms  of  actions 

1  Sir  William  Jones'  Works.    Pre-         ^  Robinson  v.  Rayley,  1  Burr.  319. 
fatory  Discourse   to  the    Speeches  of 
Isaeus,  IV.  34.  (f.)  IX.  50,  51  (8  vo.). 


INTRODUCTION.  9 

for  different  wrongs,  requiring  different  remedies,  lies  in  the 
nature  of  things  ;  it  is  absolutely  inseparable  from,  the  correct 
administration  of  justice  in  common-laiv  courts.  The  result 
of  these  experiments,  so  far  as  they  have  come  to  our  knowl- 
edge, has  been  to  destroy  the  certainty  and  simplicity  of  all 
pleadings,  and  introduce  on  the  record  an  endless  wrangle 
in  writing,  perplexing  to  the  court,  delaying  and  impeding 
the  administration  of  justice."  ^  Undoubtedly,  at  the  present 
moment,  the  swing  of  the  pendulum  is  in  the  direction  furthest 
from  special  pleading.  Just  as  undoubtedly,  if  trial  by  jury 
be  retained,  it  must  again  swing  in  the  other  direction .^  It 
is  essential  for  the  proper  administration  of  justice  that  the 
princrj^les  of  special  pleading  should  be  observed  in  the 
statement  of  cases  for  decision  by  courts.  There  is  an  ele- 
ment of  truth  in  the  declaration  of  Baron  Parke  that,  "  Those 
who  drew  loose  declarations  brought  scandal  on  the  law."  ^ 
Equally  does  the  language  of  the  court  in  the  old  case  of 
Heard  v.  Baskerville  express  a  truth.  The  court,  in  constru- 
ing the  statute  of  demurrers,  27  Eliz.  c.  5,  said  :  "  Now  the 
moderation  of  this  statute  is  such  that  it  doth  not  utterly 
reject  form  ;  for  that  were  a  dishonor  to  the  law,  and  to 
make  it  in  effect  no  art;  but  requires  only  that  it  be  dis- 
covered, and  not  used  as  a  secret  snare  to  entrap."  * 

Perhaps  the  truth  with  respect  to  the  proper  use  to-day 
of  the  rules  of  special  pleading  is  nowhere  better  stated 
than  by  Mr.  Justice  Brown,  delivering  the  opinion  of  the 
Supreme  Court  of  the  United  States  in  the  case  of  Wiggin's 
Ferry  Co.  v.  0.  &  M.  Railway :  "  Rules  of  pleading  are 
made  for  the  attainment  of  substantial  justice,  and  are  to 
be  construed  so  as  to  harmonize  with  it  if  possible.  A 
mistaken  view  of  one's  rights  or  remedies  should  not  be 
permitted  wholly  to  defeat  a  claim  founded  upon  principles 
of  equity  and  justice.  And  if  the  pleadings  can  be  so 
amended  as  to  admit  proof  of  such  claim,  and  such  amend- 
ment does  not  introduce  a  new  cause  of  action,  though  it 

1  20  How.  525.  8  Lord    Coleridge.      The    Contem- 

^  Preface    to    Seventh  Edition   of     porary  Review,  June,  1890,  800. 
Taylor  on    Evidence.  *  Hob.  232. 


10  COMMON-LAW   PLEADING. 

may  set  up  a  new  measure  of  damages,  or  work  a  real  hard- 
ship to  the  party  defendant,  it  is  within  the  discretion,  even 
of  the  appellate  court,  to  permit  such  amendment  to  be 
made."  ^  While  this  decision  was  made  in  an  equity  case,  it 
nevertheless  correctly  indicates  the  trend  of  the  law.^  Here, 
however,  it  must  be  again  recollected  that  the  lawyer  who 
is  so  ignorant  of  these  rules  of  pleading  as  to  be  compelled  to 
apply  frequently,  and  even  in  the  appellate  court,  for  leave  to 
amend,  in  order  that  his  clients  may  not  suffer  through  his 
ignorance,  is  one  who  probably  will  do  neither  justice  to  these 
clients,  nor  credit  to  his  profession. 

1  142  U.  S.  415.  Practice,   I.    607.      Kennedy   et  al.  v. 

2  Encyclopaedia    of    Pleading    and    Georgia  State  Bank  et  al.,  8  How.  610. 


CHAPTER    I. 

OF  REMEDIES. 

XHEvital  principle  of  all  systems  of  law  is  that  a  remedy 
must  be^giyen  for  tlie_,yii3latiQii-o£-fiLEerY,riglit.  Our  English 
law  expresses  this  truth  in  the  Latin  words  ubi  jus,  ihi  re- 
medium  (wherever  a  right  exists,  there  exists  a  corresponding 
remedy).  This  maxim  has  been  freely  translated  by  Lord 
Coke  thus :  "  The  law  will,  that  in  every  case  where  a  man 
is  wronged  and  endammaged,  that  he  shall  have  remedie."  ^ 
Chief  Justice  Holt  uses  even  terser  and  stronger  language : 
"  It  is  a  vain  thing  to  imagine  there  should  be  right  with- 
out a  remedy,  for  want  of  right  and  want  of  remedy  are 
convertibles."  ^ 

So  radical  is  this  principle  that  the  law  expands  by  force 
of  its  inherent  elasticity  to  admit  new  remedies.  "  It  is  not 
the  novelty  of  the  action  that  can  be  argued  against  it,  if  it 
can  be  supported  by  the  old  grounds  and  principles  of  the 
law.  The  ground  of  law  is  plain,  certain,  and  indeed  univer- 
sal, that  where  any  man  is  injured  in  his  right  by  being  either 
hindered  in  or  defrauded  of  the  enjoyment  thereof,  the  law 
gives  him  an  action  to  repair  himself.  .  .  .  The_law  of  Enjg:- 
land  is  not  confined  to  precedents^ut  consists  in  the  reason 
of  tliem/wHcE^is  much  more  extensive^  than  the  circum- 
stances of  this  or  that  case.  '  Ratio  legis  est  anima  legis,'  £t 
'  ubi  eadem  ratio  ibi  idem  jus  '  ('  the  reason  of  the  law  is  the 
soul^f  tlie^  lawj*  and  '  where  the  same  reason  exists  there__is 
the  same  right'),  are  known  maxims." ^ 

1  Co.  Litt.  igf  b.  8  Per  Holt,  C.   J.,  Ashby  v.  White, 

2  Ashhy  I'.  White,  Ld.  Raym.  938  ;  English  Ruling  Cases,  525 ;  s.  c.  (House 
s.  c.  1  Smith's  Leading  Cases,  342 ;  B.C.     of  Lords)  1  Bro.  P.  C.  47. 

1  English  Ruling  Cases,  521. 


12  COMMON-LAW   PLEADING. 

But  if  an  entirely  new  principle  is  attempted  to  be  intro- 
duced, resort  must  be  had  to  legislation,  for  in  such  case  it  is 
sought  to  create  not  only  the  remedy,  but  the  right  also.^  For 
example,  the  Act  of  Parliament  known  as  the  Employer's 
Liability  Act  (43  &  44  Vict.  c.  42)  was  required  to  create  a 
right  of  action  in  favor  of  a  servant,  injured  by  the  negligent 
act  of  a  fellow-servant,  against  their  common  employer. 

Again,  the  student  must  note  that  it  is  only  the  violation 
of  a  right  for  which  a  remedy  is  given.  A  man  may  suffer 
great  loss  and  yet  have  no  right  violated.  The  law  denomi- 
nates such  loss  Jjamnutn  jih.&qii£_J^iiLi4^h-4l'0SS  without  legal 
injury).  For  example  :  a  proprietor  digs  a  well  on  his  own 
land  and  pumps  up  water  to  an  extent  exceeding  what  is  re- 
quired for  his  private  use,  with  the  result  of  absorbing  water 
from  the  substrata  and  diminishing  the  supply  enjoyed  by 
neighboring  proprietors,  but  without  diverting  water  already 
collected  in  any  definite  channel ;  the  loss  thus  suffered  by 
those  proprietors  is  damnum  absque  injuria,  and  affords  no 
ground  of  action  against  the  first  proprietor.^  The  establish- 
ment of  a  rival  school  which  draws  away  the  pupils  from 
a  school  previously  established  is  another  instance  of  such 
loss.^ 

Before  considering  the  remedies  given  to  injured  persons 
through  the  instrumentality  of  the  law,  it  is  proper  to  advert 
to  very  ancient  methods  of  redress  by  their  own  mere  act, 
which  were  allowed  to  parties.  Such  redress  could  be  effected 
in  two  manners  :  First,  by  the  sole  act  of  the  party  injured ; 
and  second,  by  the  joint  act  of  all  parties  concerned. 

Self-Help. 

Such  methods  of  redress  were  called  self-help  as  dis- 
tinguished from  the  help  that  the  law  gives. 

In  early  societies  the  functions  of  the  ruler,  while  large  in 
power,  were  limited  in  application.  The  protection  of  private 
rights  and  the  redress  of  private  wrongs  were  relegated  to 

1  Ashhurst,  J.,  in  Pasley  v.  Freeman,  2  Chasemore  v.  Richards,  7  H.  L.  C. 
3  T.  R.  63.  349, 

8  Bacon,  Abr.,  Actions  in  General,  B. 


OF   REMEDIES.  13 

the  parties  concerned.  This  was  true  among  ancient  peoples 
generally.  We  learn  from  Hunter's  work  on  Roman  Law 
that  "at  the  time  of  the  XII.  Tables  (b.  c.  451,  450)  the  state 
did  not  as  yet  claim  to  decide  civil  disputes,  although  it  sanc- 
tioned the  use  of  force  to  bring  an  alleged  wrong-doer  before 
the  tribunals.  At  an  earlier  period,  as  we  may  infer  from  the 
peculiarity  of  the  oldest  form  of  legal  procedure,  even  this 
limited  authority  was  denied.  The  earliest  type  of  judicial 
proceedings  is  a  mock  combat  followed  by  a  reference  to 
arbitration.  The  first  judges  were  simply  arbitrators.  Civil 
jurisdiction  sprang  out  of  arbitration.  The  coercive  authority 
of  the  state  grew  out  of  the  voluntary  submission  of  the  sub- 
ject." 1 

If  we  turn  to  what  we  to-day  call  crimes,  we  are  con- 
fronted with  the  same  private  aspect.  "  The  fact,"  says  Mr. 
Justice  Stephen,  "  that  the  private  vengeance  of  the  person 
wronged  by  a  crime  was  the  principal  source  to  which  men 
trusted  for  the  administration  of  criminal  justice  in  early 
times,  is  one  of  the  most  characteristic  circumstances  con- 
nected with  English  Criminal  Law,  and  has  had  much  to  do 
with  the  development  of  what  may,  perhaps,  be  regarded  as 
its  principal  distinctive  peculiarity,  namely,  the  degree  to 
which  a  criminal  trial  resembles  a  private  litigation."  ^  This 
most  interesting  and  instructive  subject,  so  closely  connected 
with  the  origin  of  all  systems  of  positive  law,  cannot  be  dwelt 
on  here,  but  the  student  is  urged  to  pursue  it  in  the  works 
cited  below.^ 

So  complete  was  the  revolution  against  this  unrestrained 
self-help  that  we  find  in  the  Roman  law  the  following  radical 
provision  existing  in  the  fifth  century  of  our  era.  "  When 
a  man  shall  have  gone  such  lengths  of  frenzied  arrogance 
as  to  have  taken  violent  possession  of  things,  .  ,  .  if  he  he 
the   owner,  he   shall    restore   the    possession   abstracted    by 

1  Roman  Law,  967.  tory  of  Criminal  Law,  Vol.  I. ;  Cherry's 

2  Hist,  of  Criminal  Law,  I.  245.  Growth  of    Criminal    Law  ;    Hunter's 
8  The  Aryan  Household  (Hearn),  c.     Roman   Law,   Book   IV. ;    Muirhead's 

xix. ;  Maine's  Early  Law  and  Custom,  Roman  Law,  51,  71,  105;  Sohm's  Insti- 
170;  Maine's  Early  History  of  Institu-  tutes  of  Roman  Law,  147,  148;  Jus* 
tions.  Lectures  IX.,  X. ;  Stephen's  His-    tinian's  Institutes  (ed.  Moyle),  I.  614. 


14  COMMON-LAW   PLEADING, 

him  from  the  possessor  and  forfeit  his  ownership  of  such 
property,"  ^ 

In  England  the  change  was  no  less  fundamental.  The  law 
began  early  to  stringently  prohibit  self-help,  and  to  discour- 
age a  resort  to  force.  In  Bracton's  time  (Henry  HI.),  "the 
man  who  has  slain  another  in  self-defence  deserves,  it  is  true, 
but  he  also  needs,  a  royal  pardon."  ^  Without  this  pardon 
he  was  not  guiltless.  Probably  in  the  reign  of  no  other 
king  was  violence  so  universal  and  continuous  in  England 
as  when  Stephen  sat  in  his  usurped  seat,  "  The  earth 
bore  no  corn ;  you  might  as  well  have  tilled  the  sea,  for  the 
land  was  all  ruined  by  such  deeds,  and  it  was  said  openly 
that  Christ  and  his  saints  slept."  ^  Yet  under  the  very  next 
king  (Henry  II.)  was  invented  that  writ  of  novel  disseisin  (of 
which  we  shall  say  more  hereafter)  which  protected  a  pos- 
session of  real  estate,  acquired  by  violence  and  without  a 
shadow  of  right.  The  owner  of  a  stolen  beast  could  only  re- 
possess himself  of  his  property  in  a  formal  and  prescribed 
way.  Britton,  writing  in  the  reign  of  Edward  I.,  supposes  the 
following  case  :  Peter  has  had  his  horse  stolen  and  finds  it  in 
the  possession  of  John,  from  whom  he  takes  it  by  violence. 
Whereupon  John  appeals  Peter  of  stealing  the  horse,  and 
Peter  says :  "  The  horse  was  mine  and  as  mine  I  took  it."  If 
Peter  succeeds  in  proving  this  assertion  he  escapes  the  gallows, 
but  as  a  punishment  for  his  act  of  violence  he  loses  the  horse, 
"  for,"  King  Edward  is  supposed  to  say, "  we  will  that  every 
one  shall  have  recourse  to  judgment  rather  than  to  force."  * 

It  was  inevitable  that  the  law  should  recede  from  this 
extreme  position,  which  it  had  been  forced  by  the  violence  of 
half-civilized  times  to  take  against  self-help.  During  the  later 
middle  ages  a  natural  reaction  in  this  respect  took  place.  "In 
our  own  day  our  law  allows  an  amount  of  quiet  self-help  that 
would  have  shocked  Bracton.  It  can  safely  allow  this,  for  it 
lias  mastered  the  sort  of  self-help  that  is  lawless."  ^ 

1  Imp.  Valent.  Cod.  8, 4,  7.  Roman  ^  The  Anglo-Saxon  Chronicle,  anno 
Private  Law,  Salkowski,  413.  1137. 

2  P.  &  M.  Hist,  IL  477,  572.  *  P.  &  M.  Hist.  n.  167. 

6  Ibid.  U,  572, 


of  eemedies,  15 

Self-Help  by  the  Mere  Act  of  the  Parties. 

There  were  five  methods  of  self-help  by  his  own  mere  act 
which  the  common  law  allowed  to  an  injured  person :  — 

(1)  By  Self-Depence. 

(2)  By  Recaption  of  Persons  or  of  Goods. 

(3)  By  Entry  upon  Lands. 

(4)  By  Abatement  of  Nuisances. 

(5)  By  Distress. 

These  methods  should  be  familiar  to  the  student  and  require 
only  brief  mention  here. 

(1)  8el£-d^fence. :  In  English  law  self-defence  is  recognized 
as  the  primary  rule  of  nature ;  it  is  a  right  which  society 
cannot  take  away.  It  includes  not  only  the  defence  of  one's 
self,  but  also  the  mutual  and  reciprocal  defence  of  such  as 
stand  in  the  relation  of  husband  and  wife,  parent  and  child, 
and  master  and  servant.  In  these  cases  if  the  party  himself, 
or  any  of  these  his  relations,  be  forcibly  attacked  in  person 
or  property,  it  is  lawful  for  him  to  repel  force  by  force.  Care 
must  be  taken,  however,  that  the  resistance  does  not  exceed  the 
bounds  of  mere  defence  and  prevention,  for  then  the  defender 
would  himself  become  an  aggressor.  Accordingly,  it  has  been 
said  that  self-defence  is  only  preventive  and  that  therefore  it 
should  not  be  included  among  methods  of  redress.^  But  the 
law  allows  a  blow  to  be  repelled  by  a  blow,  and  in  this  very  act 
of  prevention  an  element  of  redress  seems  to  be  present. 

(2)  Recajjtion  or  reprisal :  This  right  exists  when  any  one 
has  deprived  another  unlawfully  of  his  goods,  or  wrongfully 
detains  his  wife,  child,  or  servant.  In  such  case  the  injured 
party  may  lawfully  claim  and  retake  the  property  or  person 
so  detained  wherever  he  happens  to  find  the  one  or  the  other. 
But  such  recaption  must  not  be  in  a  riotous  manner,  nor 
attended  with  a  breach  of  the  peace. 

(3)  Entry  upon  lands  :  As  recaption  is  a  remedy  given  to 
the  party  himself,  against  one  who  unlawfully  detains  from 
him  his  personal  property,  so  entry  on  lands  and  tenements, 
when  another  person  without  any  right  has  taken  possession 

1  Min.  Inst.  IV.  95. 


16  COMMON-LAW   PLEADING. 

thereof,  is  a  remedy  of  the  same  kiud  for  illegal  deprivation 
of  the  possession  of  real  estate. 

(4)  Abatement  of  nuisances :  Whatever  unlawfully  an- 
noys or  does  damage  to  another  is  a  nuisance  ;  and  such 
nuisance  may  be  abated,  that  is,  taken  away  or  removed,  by 
the  party  aggrieved  thereby,  provided  he  commit  no  riot  nor 
breach  of  the  peace  in  doing  it. 

(5)  Distress :  A  distress  is  the  summary  taking  of  a  per- 
sonal chattel  out  of  the  possession  of  the  wrong-doer  into  the 
custody  of  the  party  injured,  to  procure  a  satisfaction  of  the 
wrong  committed.  It  would  seem  originally  to  have  been 
lawful  only  when  authorized  by  a  court.  Its  subsequent 
legalization  as  a  mere  private  act  is  therefore  an  instance 
of  modified  feeling  against  all  self-help  as  such.  The  student 
is  referred  to  Bigelow's  History  of  Procedure  (Chapter  V. 
Distraint)  and  to  Pollock  and  Maitland's  History  (Yol.  II. 
pp.  573-576)  for  a  detailed  account  of  its  origin  and  incidents.^ 
We  have  only  space  here  to  say  that  it  was  originally  a 
means  which  the  feudal  lord  could  employ  to  compel  his  men 
to  answer  for  default  of  services.  Blackstone  gives  the  fol- 
lowing as  its  regular  uses :  a  distress  might  be  taken  (1)  for 
non-payment  of  rent  in  arrear ;  (2)  for  neglect  to  do  suit 
to  the  lord's  court  or  to  perform  other  certain  personal  ser- 
vices ;  (3)  for  amercements  in  a  court  leet ;  (4)  where  a 
man  finds  beasts  of  a  stranger  wandering  on  his  grounds, 
damage  feasant,  that  is,  doing  him  hurt  or  damage  by  tread- 
ing down  his  grass  or  the  like ;  (5)  for  several  duties  and 
penalties  prescribed  and  inflicted  by  special  acts  of  Parliament. 
All  chattels  upon  the  leased  premises  were  liable  for  distress 
for  rent.  To  this  general  rule  there  were,  however,  the  follow- 
ing exceptions  :  things  wherein  no  man  can  have  an  absolute 
and  valuable  property  ;  whatever  is  at  the  time  of  distraint 
in  the  personal  use  or  occupation  of  any  man ;  valuable  things 
in  the  way  of  trade,  as  a  horse  standing  in  a  smith's  shop  to 
be  shod ;  a  man's  tools  and  utensils  of  his  trade,  as  the  axe 
of  a  carpenter,  the  books  of  a  scholar,  beasts  of  the  plough ; 
things  of  a  nature  to  be  injured  by  keeping,  and  which  can 

1  See  also  Maine's  Early  History  of  Institutions,  Lectures  IX.,  X. 


OP  REMEDIES.  17 

not  be  rendered  again  in  as  good  plight  as  when  they  were 
distrained,  and  things  fixed  to  the  freehold. 

It  must  be  noted  that  the  right  of  distraint  was  not  origi- 
nally a  right  of  self-satisfaction.  The  beast  distrained  could 
neither  be  sold  nor  used.  It  was  in  a  sense  in  the  custody  of 
the  law.  The  distrainer  must  always  be  ready  to  show  it 
and  to  give  it  up  if  the  tenant  tenders  payment  of  the  amount 
due  or  resorts  to  his  remedy  of  replevin.  Subsequently,  a 
sale  of  the  thing  distrained  was  allowed  in  certain  cases  by 
Act  of  Parliament.  In  making  distraint  it  was  a  matter  of 
the  utmost  importance  to  the  distrainer  to  observe  all  of  the 
formalities  of  the  law.  "  He  not  only  lost  the  goods  seized 
in  case  he  had  made  a  false  step,  but  he  was  also  subjected 
to  a  fine  in  favor  of  the  debtor."  ^ 

For  an  illegal  distress  the  remedies  allowed  by  common 
law  to  the  tenant  or  owner  of  the  thing  distrained  were  the 
actions  of  replevin,  of  trespass  and  of  trespass  on  the  case, 
of  all  of  which  we  shall  speak  hereafter.  Trespass  lay  in 
all  cases  in  which  any  irregularity  of  procedure  rendered 
the  distrainer  a  trespasser  from  the  outset ;  trespass  on  the 
case  lay  for  excessive  levy,  for  a  wrongful  seizure  of  property 
not  liable  to  distress,  and  for  irregularities  which  did  not 
render  the  distrainer  a  trespasser  from  the  outset.^ 

Blackstone  mentions  tlie  seizing  of  heriots,  when  due  on 
the  death  of  a  tenant,  as  another  species  of  self-remedy.  It 
is,  however,  not  of  sufficient  historical  importance  to  require 
more  than  mere  mention  in  this  connection. 

Self-Help  by  the  Joint  Act  op  all  Parties  concerned. 

We  must  next  consider  those  remedies  which  arise  from  the 
joint  act  of  all  parties  concerned.     These  are  only  two : 

(1)  Accord. 

(2)  Arbitration. 

(1)  Accord,  or,  as  the  term  more  commonly  is.  Accord 
and    Satisfaction,    occurs    whenever    parties    who    have    a 

1  Hist.  Pr.  211.  2  In  the  United  States  the  right  of 

distraint  has  been  generally  abolished. 
2 


18  COMMON-LAW   PLEADING. 

controversy  mutually  agree,  the  one  to  make  or  give,  and 
the  other  to  receive  something  (whether  money,  property, 
or  a  specific  act  performed),  in  satisfaction  of  the  injury. 
The  effect  of  this,  when  the  satisfaction  is  actually  given 
and  accepted,  is  to  entirely  atone  for  the  wrong.  No  right 
of  action,  by  reason  of  the  wrong,  remains. 

(2)  Arbitration  is  where  the  parties,  injuring  and  injured, 
submit  all  matters  in  dispute,  concerning  any  personal  chattel 
or  personal  wrong,  to  the  judgment  of  two  or  more  arbitrators, 
who  are  to  decide  the  controversy  ;  if  they  do  not  agree,  it  is 
usual  to  provide  that  another  person  be  called  in  as  umpire, 
to  whose  sole  judgment  the  matter  in  dispute  is  then  referred. 
The  decision  of  the  arbitrators  or  of  the  umpire  is  called  an 
award.  Thereby  the  question  at  issue  is  as  fully  determined, 
and  the  right  transferred  or  settled,  as  it  could  have  been  by 
the  agreement  of  the  parties  or  the  judgment  of  a  competent 
court.  The  title  to  real  estate  cannot,  however,  pass  by  a 
mere  award,  although  the  award  may  require  a  conveyance, 
and  it  will  be  a  breach  of  the  arbitration  bond  to  refuse  com- 
pliance. This  method  of  settling  disputes  is  regarded  by  the 
law  with  much  favor.  Whatever  its  merits  in  theory,  its 
practical  benefit  is  open  to  serious  doubts,  which  have  been 
strongly  stated  by  Lord  Eldon  (Street  v.  Rigby,  6  Yes.  818) 
and  by  Pi:ofessor  Minor  (Institutes,  Vol.  IV.  Pt.  I.  p.  138). 

Remedies  by  Sole  Operation  op  Law. 

There  are  likewise  only  two  instances  of  remedies  given  by 
the  sole  operation  of  the  law. 

(1)  Retainer. 

(2)  Remitter. 

(1)  Retainer :  If  a  person  indebted  to  another  make  that 
creditor  his  executor,  or  if  such  creditor  obtain  letters  of 
administration  upon  his  debtor's  estate,  the  law  in  each  case 
gives  the  creditor  a  remedy  for  his  debt,  by  allowing  him  to 
retain  so  much  as  will  pay  himself  before  any  other  creditors 
whose  debts  are  of  equal  degree.  The  law  gives  him  this 
remedy  because  he  cannot,  in  his  private,  sue  himself  in 


OP  REMEDIES.  19 

his  representative  capacity,  and  there  is  no  one  else  whom 
he  can  sue.  Hence,  the  law  by  its  own  act  puts  him  in  as 
good  a  position  as  if  he  had  sued.^ 

(2)  Remitter'^  applies  only  to  real  estate,  and  is  where  he 
wlio  has  the  true  property  in  lands,  but  is  out  of  possession 
thereof,  and  has  no  right  of  entry  thereon  without  recovering 
possession  in  an  action,  has  the  freehold  cast  upon  him  by 
some  subsequent,  and,  of  course,  defective,  title ;  in  this  case 
he  is  remitted,  or  sent  back,  by  operation  of  law,  to  his 
ancient  and  more  certain  title.  Again,  where  one  is  in  wrong- 
ful possession  of  real  estate  as  a  disseisor,  and  then  acquires 
by  act  of  the  law,  as  by  a  descent  cast,  the  true  property  in 
the  freehold  of  that  real  estate,  there  he  is  remitted  to  his 
true  and  better  title.  But  the  better  title  must  always  come 
to  the  party  by  act  of  the  law,  or  at  least  without  his  partici- 
pation. The  same  reason  underlies  this  rule  as  in  the  case 
of  retainer.  Being  himself  in  possession  as  disseisor,  he  can- 
not sue  himself  to  establish  his  new  and  lawful  title.^ 

We  come  now  in  due  order  to  consider  the  redress  of 
injuries  effected  by  the  concurring  act  of  the  parties  and  of 
the  law  ;  that  is,  by  suit  in  court. 

I    ^  In  the  United  States  this  matter  is  '  The  student  who  may  wish  to  study 

^nerally  regulated  by  statute.  these  methods  of  redress  in  greater  de- 

^^  A  case  for  the  application  of  this  tail  is  referred   to   Blackstone's  Com- 

doctrine  could  hardly  arise  to-day,  for  mentaries,  Book   III.  chaps.   1   and   2, 

we  have  no  proprietary  as  distinct  from  and   Minor's   Institutes,  Book  IV.  Pt. 

possessory  actions  for  the  recovery  of  I.  94-156. 
real  property. 


CHAPTER    11. 

OF  COURTS. 

The  redress  of  injuries  by  suit  in  court  requires  the  co- 
operation of  the  act  of  the  parties  and  the  act  of  the  law. 
The  term  fiuit  has  been  defined  by  Blackstone  as  "a  la^^ul 
demand  of  one's  ri^ht^"  ^  A  better  definition  has  been  given 
by  Chief  Justice  Marshall  in  these  words  :  "  The  term  [suit] 
is  certainly  a  very  comprehensive  one,  and  is  understood  to 
apply  to  any  proceeding  in  a  court  of  justice,  by  which  an 
individual  pursues  that  remedy  in  a  court  of  justice  which 
the  law  affords  him.  The  modes  of  proceeding  may  be 
various,  but  if  a  right  is  litigated  between  parties  in  a 
court  of  justice,  the  proceeding  by  which  a  decision  of  the 
court  is  sought  is  a  suit."  ^  The  act  of  at  least  one  of  the 
parties  is  required  to  set  the  law  in  motion,  and  the  process 
of  the  law  is  as  a  general  thing  the  only  instrument  by  which 
the  parties  are  enabled  to  procure  a  certain  and  adequate 
redress.  And  it  is  to  be  noted  that  even  where,  as  we  have 
seen,  the  law  allows  an  extra-judicial  remedy,  yet  that  does 
not  exclude  the  ordinary  course  of  justice.  For  example,  I 
may  defend  myself,  yet  I  am  also  entitled  to  an  action  of 
assault  and  battery  against  my  assailant.  Lord  Coke  says 
that,  "  Curia,  court,  is  a  place  where  justice  is  judicially 
ministered."  ^  The  definition  is  sounder  than  the  etymology 
of  the  learned  author,  who  derives  the  word  from  cura,  quia 
in  curiis  publicis  curas  gerehant  (care,  because  in  public 
courts  they  transact  business).*      While  this  definition  has 

1  Bl.  Com.  m.  116*.  3  Co.  Litt.  58  a. 

2  "Weston  i".  Charleston,  2  Peters,  *  The  verbal  play  is  lost  in  trans- 
464.  lation. 


OP  COURTS.  21 

been  criticised  in  certain  American  cases,^  it  is  sufficiently 
accurate.  According  to  English  law,  the  king  was  the  foun- 
tain of  all  justice,  and  hence  all  courts  of  justice  derived 
their  jurisdiction  and  power  from  the  crown. 

Courts  of  Record. 

Of  courts,  some  are  of  record,  others  not  of  record.  ^ 
court  of  record  is  a  judicial,  jorganized  tnbu n al^^ha vi n g 
attributes  and  exercising  fun«tiens_Jndependently^f  tbe 
person  of  the  magistrate  ^design^ated^generally  to  hol4-  rt^j 
an4_^rapeeding  according- to  the  course  qf^the_^common-laWi2| 
The  acts  and  judicial  proceedings  "of  these  courts  are  re- 
corded (originally  they  were  enrolled  in  parchment)  for  a 
perpetual  memorial  and  testimony.  These  records  (or  rolls) 
are  called  the  records  of  the  court,  and  they  import  absolute 
verity.  Nothing  can  be  averred  against  them,  nor  shall  any 
plea  or  even  proof  be  admitted  to  the  contrary.  If  the-exist- 
ence  of  a  record  be  denied,  it  shall  be  tried  by  itself,  that  is, 
by  an  inspection  thereof  by  the  court  to  ascertain  whether  or 
not  it  is  a  properly  authenticated  record.  All  English  courts 
of  record  are  the  king's  courts. 

Courts  not  of  Record. 

A  courtjiot_-oLr£gflrd-i»-ar^60urt--o£— whose  proceedings  no 
solemnlcontempqraneous  minute  is- made  by  a  sworn  officer. 
Such  were  the  courts-baron  incident  to  every  manor.  The 
proceedings  of  such  courts  are  not  enrolled  or  recorded,  and 
are  matters  of  fact  to  be  tried  and  determined,  if  disputed, 
by  a  jury. 

Of  Courts  in  General. 

Every  court  must  be  composed  of  at  least  three  constituent 
elements :  the  actor^  or  plaintiff,  who  complains  of  an  injury 
done ;  the  jr&us^  or  defendant,  who  is  called  upon  to  make 
satisfaction  for  it ;  and  ihajujt&x,  or  judicial  power,  who  is  to 

1  45  Iowa,  503  ;  79  Ind.  375  ;  1  Gall.  ^  Bonvier'sLaw  Diet,  sub  voc.  "  Court 
499;  4  McCrary,  536;  5  Col.  381.  of  Record."    Ex  parte  Gladhill,  8  Met. 

170. 


22  COMMON-LAW  PLEADING. 

examine  the  accusation,  to  determine  the  law  apphcable  in 
the  premises,  and,  if  any  injury  has  been  done,  to  ascertain 
and  by  proper  officers  to  apply  the  remedy.  We  cannot  here 
speak  of  attorneys-at-law  or  of  counsel  (who  are  officers  of 
court)  further  than  to  say  that  originally  every  suitor  was 
obliged  to  appear  in  person.  In  England,  there  was  no  definite 
legal  profession  till  more  than  a  century  after  the  Norman 
Conquest.^  Students  who  wish  to  follow  the  growth  of  this 
profession  are  referred  to  Minor's  Institutes,  Yol.  IV.  Pt.  I. 
pp.  161-177. 

The  third  and  fourth  chapters  of  Book  III.  of  Blackstone's 
Commentaries  are  devoted  to  the  consideration  of  courts  in 
general  and  of  the  English  public  courts  of  common  law  and 
equity.  This  great  system  of  courts  existed  continuously  for 
about  six  hundred  years,  but  has  been  recently  entirely  re- 
modelled- by  a  series  of  statutes  known  as  the  Judicature  Acts, 
beginning  in  1873.  Of  these  chapters  of  Blackstone  his 
recent  editor,  Hammond,  well  says :  "  To  the  American 
student  these  chapters  are  now  perhaps  even  more  interesting 
and  instructive  than  they  are  in  England.  They  portray  a 
system  with  which  every  American  judge  and  lawyer  of  the 
first  century  was  familiar,  and  which  they  regarded  with  a 
veneration  hardly  less  than  that  paid  the  law  itself.  More 
remains  of  it  may  now  be  found  in  America  than  in  the 
mother  country ;  for  no  such  sweeping  change  as  that  of  the 
Judicature  Acts  is  possible  under  our  state  and  national 
organization.  Moreover  the  English  reports  from  the  Year 
Books  down  are  unintelligible  to  the  student  unless  he  under- 
stands the  former  organization  of  the  courts."  ^ 

Ancient  Prominence  of  Law  of  Procedure. 

But  the  study  of  the  origin  and  organization  of  the  great 
common-law  courts  has  a  more  profound  interest  than  a  merely 
historical  one.  Upon  an  examination  of  ancient  codes  of  law, 
we  are  surprised  by  the  conspicuous  and  predominant  place 
occupied  by  Courts  of  Justice  and  Rules  of  Procedure.^     Sir 

1  P.    &  M.   Hist.   L     Introduction,         2  bj  Com.  III.  84. 
xxvii.  ^  Hunter's  Roman  Law,  122. 


OP   COURTS.  23 

Henry  Sumner  Maine,  speaking  of  the  ancient  Indian  code  of 
laws,  and  especially  of  the  compilation  known  as  the  Book  of 
Narada,  says  :  "  The  mechanism  of  a  Court  of  Justice  and  its 
procedure  are  first  elaborately  described.  .  .  .  The  principle 
and  meaning  of  this  ancient  classification  strike  me  as  obvious. 
The  compiler  of  Narada  or  his  original  makes  the  assumption 
that  men  do  quarrel,  and  he  sets  forth  the  mode  in  which 
their  quarrels  may  be  adjudicated  upon  and  settled  without 
bloodshed  or  violence.  The  dominant  notion  present  to  his 
mind  is  not  a  Law,  or  a  Right,  or  a  Sanction,  or  the  distinction 
between  Positive  and  Natural  Law,  or  between  Persons  and 
Things,  hut  a  Court  of  Justice.  The  great  fact  is  that  there 
now  exists  an  alternative  to  private  reprisals,  a  mode  of 
stanching  personal  or  hereditary  blood-feuds  other  than 
slaughter  or  plunder.  Hence,  in  front  of  everything  he  places 
the  description  of  a  Court,  of  its  mechanism,  of  its  procedure, 
of  its  tests  of  alleged  facts.  Having  thus  begun  with  an 
account  of  the  great  institution  which  settles  quarrels,  he 
is  led  to  distribute  law  according  to  the  subject-matter  of 
quarrels,  according  to  the  relations  between  human  beings 
which  do,  as  a  fact,  give  rise  to  civil  disputes.  Thus  Debt, 
Partnership,  the  Marital  Relation,  Inheritance  and  Donation, 
are  considered  as  matters  about  which  men  at  a  certain  point 
of  civilization  do,  as  a  fact,  have  differences,  and  the  various 
rights  and  liabilities  [as  we  should  call  them]  to  which  they 
give  rise,  are  set  forth  simply  as  guides  towards  determiyiing 
the  judgment  which  a  Court  of  Justice  should  give  when  called 
upon  to  adjudicate  on  quarrels."  ^  The  same  author  says  in 
another  treatise :  "  It  would  not  be  untrue  to  assert  that,  in 
one  stage  of  human  affairs,  rights  and  duties  are  rather  the 
adjective  of  procedure  than  procedure  a  mere  appendage  to 
rights  and  duties.  There  have  been  times  when  the  real 
difficulty  lay,  not  in  conceiving  what  a  man  was  entitled  to, 
but  in  obtaining  it ;  so  that  the  method,  violent  or  legal, 
by  which  an  end  was  obtained  was  of  more  consequence  than 
the  nature  of  the  end  itself.  As  a  fact,  it  is  only  in  the  most 
recent  times  or  in  the  most  highly  developed  legal  systems 

1  Early  Law  and  Custom,  380,  381,  382. 


24  COMMON-LAW  PLEADING. 

that  remedies  have  lost  importance  in  comparison  with  rights, 
and  have  ceased  to  affect  them  deeply  and  variously."  ^ 

That  this  is  true  of  the  development  of  our  English  law  is 
clearly  stated  by  Pollock  and  Maitland.  "  That  characteristic 
mark  of  ancient  bodies  of  law,  the  prominent  place  given  to 
what  we  sometimes  speak  of  as  '  adjective  law,'  the  apparent 
subordination  of  rights  to  remedies,  is  particularly  noticeable 
in  our  own  case,  and  endures  until  modern  times  ;  and  natu- 
rally, for  our  common  law  is  the  law  of  courts  which  gradually 
acquired  their  jurisdiction  by  the  development  and  interpreta- 
tion of  procedural  formulas."  ^  This  is  confirmed  by  our 
American  jurist,  Holmes,  who  says,  speaking  of  the  origin  of 
the  action  of  debt :  "  It  seems  strange  that  this  crude  product 
of  the  infancy  of  law  should  have  any  importance  for  us  at 
the  present  time.  Yet  whenever  we  trace  a  leading  doctrine 
of  substantive  law  far  enough  back,  we  are  very  likely  to  find 
some  forgotten  circumstance  of  procedure  at  its  source."  ^ 
To  the  same  effect  is  what  Hammond  writes  :  "  The  old  pro- 
cedure had  stood  in  all  its  substantial  features  at  least  since 
the  reign  of  Edward  I.,  and  in  that  time  had  almost  created  the 
English  law  of  personal  proj)erty,  of  contracts,  and  for  the  most 
•part  of  torts.  In  all  these  fields,  if  we  try  to  trace  the  sub- 
stantive law  to  its  sources,  we  find  most  of  its  rules  beginning 
as  rules  of  practice  in  the  appropriate  action."  *  These 
authorities  should  satisfy  the  student  that  he  must  understand 
the  Law  of  Procedure,  or,  as  Bentham  and  his  school  prefer  to 
say,  adjective  law,  before  he  can  hope  to  master  the  substan- 
tive law  of  past  centuries  and  of  to-day. 

Anglo-Saxon  Courts. 

Of  the  system  of  procedure  and  of  the  courts  existing 
in  England  prior  to  the  Norman  Conquest,  but  little  can  be 
said  here.  The  student  who  has  leisure  to  pursue  that  sub- 
ject can  profitably  read  Bigelow's  History  of  Procedure  in 
England,  and  the  first  chapter  of  Pollock  and  Maitland's 
History    of    English    Law.      He    is    especially    referred    in 

1  Early  History  of  Institutions,  252.         '  Holmes,  C.  L.  253. 
a  P.  &  M.  Hist.  L  208.  *  Bl.  Com.  III.  187. 


OF   COURTS.  25 

connection  with  the  subject-matter  of  this  entire  chapter  to 
"The  King's  Peace,"  a  recent  (1895)  very  instructive  and 
accurate  historical  essay  upon  the  English  Law  Courts  by 
F.  A.  Inderwick,  Q.  C. 

The  natural  tendency  of  a  system  whose  main  object  was 
to  repress  self-help,  was  to  localize  the  administration  of 
justice.  Self-help  was  prompt  and  ready  to  supply  redress 
when  and  where  the  wrong  was  committed.  The  substitute 
for  self-help  must  aim  to  be  equally  efficient.  "  To  bring  the 
view  of  justice  to  every  man's  door,  to  emulate  the  Cadi  under 
the  palm-tree,  the  justice-seat  in  the  king's  gate,  the  shout  of 
the  Wapentake,  has  ever  been  the  ideal  of  law-reformers."  ^ 
Accordingly,  under  the  Anglo-Saxons  the  administration  of 
justice  was  local.  The  several  counties  of  England  each  did 
separately  and  completely  its  own  judicial  work.  Appeals 
were  discouraged  and  de-centralization  was  supreme.  It  is 
important  to  note  this,  for  after  the  Norman  Conquest  the 
opposite  course  was  pursued,  and  all  the  judicial  work  of  the 
whole  country  was  collected  together  and  disposed  of  in  one 
central  court  and  by  one  supreme  authority .^ 

The  plan  adopted  by  Alfred  the  Great  and  his  successors 
was  to  divide  the  entire  kingdom  into  sections,  and  to  place 
each  of  these  under  the  control  of  a  chief  officer*  Each  section 
was  subdivided  into  smaller  ones  and  these  into  still  smaller, 
until  finally  a  subdivision  was  reached  at  the  head  of  which 
was  a  recognized  officer,  accountable  directly  to  his  superior 
officer,  and  through  him  and  his  superiors  indirectly  to  the 
king.  This  ultimate  subdivision  was  small  enough  to  include 
a  community  of  which  each  member  was  known  to  the  other 
and  to  the  common  head,  and  was  easily  reached  for  purposes 
of  legal  process,  of  military  service,  and  of  taxation.  The 
chief  sections  were  called  counties  or  shires,  at  the  head  of 
each  of  whicli  was  a  judicial  officer  called  the  Shire-reeve, 
afterwards  the  Sheriff.  Each  county  was  then  subdivided 
into  hundreds,  which  were  composed  of  either  one  hundred 
tithings  or  (it  is  uncertain  which)  one  hundred  hides  of  land, 
which  would  equal  in  extent  about  ten  thousand  acres,  or  a 

1  The  King's  Peace.    Introduction,  xvii.        ^  Tbld.    Introduction,  xiii. 


26  COMMON-LAW  PLEADING. 

little  less  than  sixteen  square  miles.  The  tithing  meant 
different  things  in  different  parts  of  the  country.  It  is  suffi- 
cient for  our  purpose  to  say  that  it  meant  a  group  of  ten  (or 
in  some  cases  more)  freemen  subject  to  the  law  of  frank- 
pledge, i.  e.,  the  law  which  made  each  freeman  of  the  group 
a  pledge  or  surety  for  the  good  conduct  or  production,  if  need 
be,  of  any  one  or  more  of  the  same  group.  Each  such  group 
was  presided  over  by  one  of  the  freemen  thus  associated,  who 
was  known  as  the  chief-pledge,  tithing-man,  head-borough, 
or  ^ors-holder  (i.  e.  head  or  elder  of  the  borh  or  pledge).^ 
There  were  other  subdivisions  for  various  purposes,  with 
which  we  are  not  here  concerned. 

The  Manor  Court  or  Court  Baron  was  presided  over  by  a 
Thane,  a  Baron,  or  the  head  of  a  tithing,  as  the  case  might  be^. 
One  was  ordinarily  attached  to  each  manor,  and  was  held  for 
the  trial  jof  cases  arising  within  the  manor,  although,  by  con- 
sent of  parties,  its  jurisdiction  might  extend  to  persons  or 
things  connected  with  the  manor  but  not  within  it.  But  if 
the  cause  of  action  was  between  persons  one  of  whom  was  not 
subject  to  the  jurisdiction  of  the  Manor  Court,  the  suit,  upon 
objection  taken,  could  not  proceed,  but  was  removed  to  the 
Hundred  or  other  proper  court.  Its  most  important  busi- 
ness later  was  to  determine,  by  writ  of  right,  all  controver- 
sies relating  to  the  right  of  lands  within  the  manor.  The 
Court  sat  by  custom  once  a  fortnight,  and  was  held  in  the 
Manor-House,  whicli  became  the  "  local  Temple  of  Justice." 

The  Hundred  Gemote,  otherwise  called  the  Court  of  the 
Hundred  or  Wapentake,  ^  was  a  court  of  higher  and  more 
extended  jurisdiction  than  the  Court  Baron.  King  Edgar 
(a.  d.  954-975)  declared  that  it  should  meet  always  once  in 
every  four  weeks,  and  that  every  man  should  do  justice  to 
another.^  It  tried  civil,  criminal,  and  ecclesiastical  causes. 
It  was  presided  over  by  a  Sheriff  or  an  Alderman  who, 
with  the  freeholders  acting  also  as  judges,  tried  the  cause. 
When  the  interests  of  the  Church  were  concerned,  a  Bishop 

1  p.  &  M.  Hist.  Passim  sub  voc.  authority  of  their  chief.  Ancient  Laws 
Frank-Pledge.  and  Institutes,  I.  455. 

2  The  court  of  assembled  warriors         ^  Ibid.  259. 
bound   to  uphold    by  their  arms  the 


OF  COURTS.  27 

was  usually  associated  with  tlie  presiding  officer.  The  Court 
had  jurisdiction  only  over  persons  or  lands  within  its  terri- 
torial limits.  An  appeal  lay  from  this  to  the  County  Court, 
but  not  until  the  party  seeking  it  had  applied  repeatedly  and 
fruitlessly  to  the  Hundred  Court.^ 

The  Trithing,  the  Lathe  Court,  and  the  Court  Leet 
were  courts  similar  in  character  to  the  Hundred,  but  they 
tried  cases  over  which  the  latter  had  no  jurisdiction.  They 
do  not  require  any  more  extended  notice  in  connection  with 
our  general  purpose.  The  Hundred  Court  was  "  the  judicial 
unit  .  .  .  for  ordinary  affairs."  The  County  Court  and  the 
Hundred  Court  were  the  ordinary  Anglo-Saxon  Courts  of 
Public  Justice.^ 

The  County  Court  was  the  most  ancient,  the  most  active, 
and  the  most  important  in  the  kingdom.  The  student  is 
especially  referred  to  a  just  appreciation  of  its  functions  by 
the  late  John  Richard  Green,  which  will  be  found  in  Volume 
I.  of  his  History  of  the  English  People,  p.  353.  This  Court 
was  held  under  the  Presidency  of  the  Sheriff  once  in  each 
month.  It  was  tlie  Sheriff's  Court.  It  had  jurisdiction  in 
civil,  criminal,  and  ecclesiastical  causes,  the  Sheriff  generally 
associating  with  himself  a  Bishop  and  other  ecclesiastical  or 
learned  persons  to  aid  him  in  administering  justice.  The 
jurisdiction  extended  to  the  trial  of  title  to  land  in  the  county, 
of  the  right  to  tithes,  of  bargains  and  sales  of  land,  of  ser- 
vices and  customs,  and  of  other  causes  of  great  moment. 
Appeals  from  the  Hundred,  Lathe,  and  Trithing  Courts  were 
also  heard  and  determined  here.^ 

The  Shireeve's  Turn  was  a  session  of  the  County  Court, 
and  was  held  twice  in  the  year  in  each  Hundred  by  the  Sheriff 
and  Bishop.  It  inquired  into  frank-pledge,  and  had  power  to 
proceed  both  against  those  who  broke  the  peace  of  the  Church, 
and  those  who  broke  the  peace  of  the  king.* 

The  Witenagemote,  or  "  assembly  of  the  wise  men,"  was 
both  a  legislative  and  a  judicial  body.     But  its  legislative  was 

1  P.  &  M.  Hist.  Passim  sub  voc.  «  The  King's  Peace,  12,  13,14;  P.  c5 
Uundred  Court.  M.  Hist.     Passim  snh  voc.  County  Court. 

•■^  F.&M.  Hist.  I.  18.  *  The  King's  Peace,  15,  16,  17. 


28  COMMON-LAW  PLEADING. 

its  main  function.  It  adjudged  incidentally  upon  the  disputes 
of  the  king's  thanes  and  great  men,  cleric  and  lay.  It  re- 
sembled, however,  rather  a  great  council  than  a  court  of  jus- 
tice, and  can  hardly  be  included  among  the  judicial  tribunals 
of  the  country.! 

Such  were  the  Anglo-Saxon  courts.  They  were  not  "  sur- 
rounded with  such  visible  majesty  of  the  law  as  in  our  times, 
nor  were  they  furnished  with  any  obvious  means  of  compel- 
ling obedience."  ^  They  were  frequently  held  in  the  open  air. 
And  yet  archaic  in  form  and  weak  in  power  as  these  courts 
were,  they  were  nevertheless  the  source  of  our  legal  insti- 
tutions. "From  the  Briton  and  the  Roman  of  the  fifth  cen- 
tury we  have  received  nothing.  Our  whole  internal  history 
testifies  unmistakably  to  our  inheritance  of  Teutonic  institu- 
tions from  the  first  immigrants  after  the  cessation  of  Roman 
administration."  3 

The  Anglo-Norman  Courts. 

When  William  the  Conqueror  had  subdued  armed  opposi- 
tion, he  had  to  consider  by  what  system  of  laws  England 
should  be  governed.  The  system  which  he  found  was  one  of 
self-government,  —  one  under  which  each  local  community 
tried  its  own  cases  with  no  right  of  appeal  beyond  the  County 
Court,  except  to  the  clemency  of  the  Crown.  The  system 
which  he  brought  with  him  was  a  highly  centralized  one,  in 
which  the  Grand  Justiciar,  or  Chief  of  the  Law,  controlled 
absolutely  the  administration  of  justice.  William  chose  a 
conservative  course.  He  did  not  interfere  with  the  existing 
Anglo-Saxon  tribunals,  save  that  he  deprived  them  of  any 
criminal  jurisdiction  over  the  offences  of  the  clergy.  On  the 
other  hand,  he  superseded  the  Witenagemote  by  one  Supreme 
Court  and  one  supreme  officer  of  justice. 

The  Curia  Regis. 

The  Court  thus  constituted  was  termed  Curia  Regis,  or  the 
King's  Court ;  it  was  also  called  Aula  Regia,  or  the  Royal 

iHist.  Pr.  20.    The  King's  Peace,  18.         ^  Abdy's  Feudalism  (quoting  Stubbs), 
2  P.  &  M.  Hist.  L  14.  134. 


OF   COURTS.  29 

Court.  It  was  attached  to  the  king's  person,  was  held  in  his 
palace,  followed  him  wherever  he  went,  and  was  the  embodi- 
ment of  royal  justice  administered  by  the  king  himself.  It 
was  the  only  Royal  Court,  as  distinguished  from  the  English 
or  Anglo-Saxon  courts  which  continued  in  their  old  form. 
It  had  unlimited  jurisdiction,  and  entertained  appeals  from 
inferior  courts.  Where  the  king  had  granted  to  certain  of  his 
subjects  the  privilege  of  suing  and  of  being  sued  only  in  the 
Royal  Court,  it  had  exclusive  jurisdiction.  It  was  presided 
over  by  the  Chief  Justiciar,  who  was  also  a  great  officer  of 
state,  being  the  King's  Lieutenant  and,  when  necessary,  the 
viceroy.  It  was  composed  of  the  Chief  Justiciar,  the  Chan- 
cellor, and  such  of  the  Barons,  ecclesiastics,  and  other  learned 
persons  as  were  from  time  to  time  summoned  to  assist  in  its 
deliberations.  It  took  its  inspiration  from  the  king,  and  pro- 
nounced his  judgments,  which  were  binding  upon  the  wiiole 
people.  William's  son  built  Westminster  Hall  for  the  more 
appropriate  and  frequent  sittings  of  the  Curia  Regis,  and 
at  Whitsuntide,  a.  d.  1099,  William  Rufus  wore  his  crown 
and  sat  for  the  first  time  in  the  royal  justice  seat  in  West- 
minster Hall. 

Rise  of  the  Court  of  Exchequer. 

From  this  time  we  find  the  court  and  officers  of  the  Ex- 
chequer existing  as  a  part  of  the  Curia  Regis.  Their  duties 
were  to  receive  the  accounts  of  the  Sheriffs  and  of  all  other 
accountants  and  collectors  of  the  Crown,  to  give  acquittance 
to  those  who  paid,  and  to  issue  writs  and  orders  to  enforce 
payments  by  those  in  default. 

We  must  pause  here  to  observe  the  wisdom  of  the  Con- 
queror's scheme.  While  he  did  not  at  the  outset  disturb  the 
Anglo-Saxon  local  courts,  he  yet  instituted  a  supreme  royal 
court  which  contained  within  itself  the  possibility  and  the 
certainty  of  their  ultimate  overthrow.  Bigelow  says  :  "  It  was 
reserved  for  the  Norman  kings  to  make  direct  way  for  the 
great  jurisdiction  of  the  royal  tribunals,  by  systematic  en- 
croachment upon  the  jurisdictions  of  the  popular  and  fran- 
chise courts,  a  fact,  however,  not  fully  manifested  before  the 


30  COMMON-LAW  PLEADING. 

twelfth  century."  ^  Again,  he  insists  :  "  The  ordinary  King's 
Court,  however,  the  full  court  sitting  with  the  king,  exercised 
a  jurisdiction  limited  in  fact  only  by  the  king's  will.  That  is, 
there  was  nothing  to  prevent  the  king  from  drawing  into  his 
court  all  the  causes  of  the  people ;  and  on  one  pretext  or  an- 
other he  did  seriously  invade  the  jurisdictions  of  other  courts, 
especially  of  the  Manorial  Courts."  ^ 

Of  the  consequences  of  these  changes  from  the  old  order,  the 
same  author  says  :  "  The  most  salutary  result  accomplished 
in  the  history  of  English  jurisprudence  was  the  establishment 
of  the  [nearly]  universal  jurisdiction  of  the  King's  Court,  in- 
cluding both  of  its  branches,  the  central  court  about  the  king's 
person  [with  the  exchequer  and  the  council],  and  the  eyre."^ 

The  Curia  Regis  continued  in  this  manner  until  the  time  of 
Henry  II.  (a.  d.  1154-1189).  Justice  was  dispensed  in  one 
department  by  the  Justiciars,  the  Chancellors,  and  their  as- 
sistants ;  questions  of  revenue  were  dealt  with  by  the  Barons 
in  the  other.  In  Henry's  time,  the  King's  Court  had  become 
overcrowded  with  suitors.  The  Conqueror's  forethought  was 
manifesting  itself  in  results.*  Men  deserted,  for  many  rea- 
sons, the  local  courts  and  flocked  to  the  King's  Court  when 
life  or  property  was  in  danger. 

Justices  in  Eyre.^ 

To  meet  this  difficulty,  Henry,  who  had  himself  been  Grand 
Justiciar,  appointed  (a.  d.  1170)  justices  to  go  about  the  king- 
dom regularly  and  hear  on  the  spot  the  complaints  of  his 
subjects.  This  was  the  origin  of  the  judicial  circuits  which 
continued  from  that  time  on.  Under  this  same  king  the  As- 
sizes (of  which  we  shall  speak  hereafter)  were  instituted ; 
their  object  was  to  enable  litigants  to  escape  the  jurisdiction 
of  the  local  court,  with  its  ordeal  of  battle,  and  to  refer  them- 
selves and  their  causes  to  the  judgment  of  the  king's  justices. 
As  litigation  increased,  and  the  suitors  of  the  King's  Court 
became  more  numerous,  great  dissatisfaction  was  caused  by 

1  Hist.  Pr.  75.  4  P.  &  M.  Hist.  L  181. 

2  Ibid.  76.  '  Itinerant  justices. 
8  Ibid.  199. 


OP   COURTS.  31 

the  fact  that  this  Court  followed  the  person  of  the  king  from 
place  to  place,  and  with  it  were  forced  to  go  its  officers  and  its 
suitors. 

Birth  of  the  Court  of  Common  Pleas. 

In  the  reign  of  King  John  a  reform  was  effected,  and  in 
consequence  the  Court  of  Common  Pleas  was  born.  The  lan- 
guage of  the  seventeenth  clause  of  Magna  Carta  (a.  d.  1215) 
was  '^Commu7iia  placita  non  sequantur  curiam  nostram,  sed 
teneantur  in  aliquo  certo  loco  "  ^  (common  pleas  shall  not  follow 
our  court,  but  shall  be  held  in  some  certain  place).  From 
that  time  common  pleas,  or  causes  between  party  and  party, 
as  distinguished  from  Crown  and  revenue  causes,  were  heard 
at  Westminster,  and  this  Court  of  Common  Pleas  retained  its 
name  and  local  habitation  until  1875.  In  a.  d.  1235,  Thomas 
de  Muleton  was  appointed  Chief  Justice  of  the  Common 
Bench,  being  the  first  Chief  Justice  of  either  of  the  common- 
law  courts.  From  this  period  personal  actions  gradually 
ceased  to  be  heard  in  either  the  Curia  Regis  or  the  Exchequer, 
and  under  Edward  I.  such  hearing  was  prohibited. 

Dissatisfaction  had  been  felt  not  only  with  the  wandering 
character  of  the  Curia  Regis,  but  also  with  the  composite 
functions  of  the  Chief  Justiciar,  who  was  soldier  and  politi- 
cian as  well  as  administrator  of  law.  This  dissatisfaction 
culminated  when  two  rival  Chief  Justiciars  fought  against 
each  other,  and  one  (Hugh  le  Despenser)  fell  on  the  field  of 
Evesham  (a.  d.  1265).  The  other  (Phillip  Bassett)  resigned. 
On  March  8,  1268,  Robert  De  Brus  was  appointed  '■'■Capitalis 
Justiciarius  ad  placita  coram  Rege  tenenda^^  (Chief  Justice  for 
holding  pleas  before  the  king).^  Without  the  passage  of  any 
formal  statute  the  Curia  Regis  ceased  to  exist,  and  there  was 
no  longer  a  Grand  Justiciar  of  England. 

Court  of  King's  Bench. 
The  remnant  of  the  great  Royal  Court  became  the  Court 
of  King's  Bench,  and  at  its  head  was  the  Lord  Chief  Justice 
newly  created. 

1  2  Inst.  21.  3  Campbell's    Lives    of    the    Chief 

Justices,  I.  59-65. 


32  COMMON-LAW  PLEADING. 

Thus  we  have  seen  the  Curia  Regis  existing  as  the  one 
great  Royal  Court  of  England  for  about  two  hundred  years. 
Slowly  it  has  broken  up  into  three  distinct  tribunals :  The 
Exchequer,  Common  Pleas,  and,  finally,  the  King's  Bench. 
For  six  hundred  years  these  three  courts  will  continue  to  be 
the  great  common-law  courts  of  England,  and  it  is  under  their 
administration  that  the  law  will  develop  from  its  rudimentary 
beginnings  into  the  system  which  to-day  is  so  adequate  to  our 
needs,  because  the  principles  of  growth  and  of  adaptability 
which  have  made  it  what  it  is  are  still  alive  in  it. 

At  the  accession  of  Edward  I.  (a.  d.  1272),  we  find  the 
Courts  of  King's  Bench,  Common  Bench  (so  Common  Pleas 
was  called),  and  Exchequer  sitting  in  Westminster  Hall.  The 
King's  Bench  was  presided  over  by  the  Lord  Chief  Justice 
with  certain  puisnd  or  assistant  judges,  and  had  exclusive 
jurisdiction  in  all  pleas  of  the  Crown,  and  in  all  appeals 
from  inferior  courts.  The  Common  Bench  was  presided  over 
by  its  Chief  Justice  and  other  assistant  judges,  and  had  exclu- 
sive jurisdiction  in  all  real  actions  and  in  actions  between 
private  persons  to  try  private  rights.  The  Exchequer  was 
presided  over  by  the  Lord  Treasurer,  with  the  Chancellor 
of  the  Exchequer  and  other  Barons,  and  its  jurisdiction  was 
limited  to  cases  touching  the  king's  revenue,  with  which  it 
had  exclusive  power  to  deal.  It  however  continued  to  some- 
times hear  cases  between  party  and  party,  as  it  had  done  ; 
but  in  A.  D.  1300,  it  was  directed  by  statute  to  cease  such 
hearings.^ 

The  Judicial  Circuits. 

We  must  pause  here  to  inquire  what  provision  was  made 
for  the  trial  of  the  numerous  causes  which  were  brought 
in  or  transferred  to  the  King's  Courts,  now  that  suitors 
were  forsaking  the  old  tribunals  for  the  stronger  and  com- 
pleter Royal  Justice.  We  have  seen  that  Henry  II.  in 
A.  D.  1170,  appointed  justices  to  regularly  go  around  the 
kingdom  and  hear  the  complaints  of  his  subjects,  and  that 
this   was  the  origin   of  the    judicial    circuits.     In  1176,  the 

i  28  Edw.  L 


OF   COURTS.  33 

number  of  these  Itinerant  Justices  was  increased  to  eighteen, 
and  they  were  sent  into  all  the  counties  of  England.  In 
1179,  England  was  divided  into  four  parts,  and  five  justices 
were  allotted  to  each  part.  These  included  in  their  number 
six  justices  of  the  Curia  Regis.  At  about  this  time  trial 
by  inquest  (the  origin  of  our  jury-trial)  and  also  the  Great 
Assize  were  introduced,  and  by  these  means,  as  we  shall  see 
more  clearly  when  we  come  to  consider  the  subject,  "  Modes 
of  Trial,"  all  issues  of  fact  involved  in  causes  pending  in 
the  Royal  Courts  at  Westminster  could  be  determined  in 
the  respective  counties  where  these  causes  arose.  The  ver- 
dicts rendered  in  the  several  counties  were  certified  back  to 
the  appropriate  Westminster  Courts.  The  Assizes  and  the 
Inquests  also  were  held  in  the  County  Courts,  which  for  many 
years  were  constituted  as  before.  The  Anglo-Saxon  method 
of  local  trials  was  undisturbed.  The  county  remained  the  unit 
for  judicial  administration.  As  the  Shire-gemote  (county- 
court)  had  been  held  twice  each  year  for  the  trial  of  causes  and 
criminals,  so  under  the  new  system  the  Sheriff  summoned  the 
jurors  and  witnesses,  and  arranged  the  business,  and  twice  in 
the  year  the  king's  justices  came  to  each  county  and  tried 
all  causes  and  offences  arising  within  its  limits.  After  a.  d. 
1885,  no  more  Itinerant  Justices,  or  Justices  in  Eyre  as  they 
were  also  called,  were  appointed ;  circuits  were  thereafter 
perambulated  by  the  Judges  of  Assize  and  JVisi  Prius}  By 
virtue  of  the  Statute  Westminster  2  (13  Edw.  I.  c.  30)  these 
judges  were  made  up  of  the  "  king's  sworn  justices,  associating 
to  themselves  one  or  two  discreet  knights  of  each  county." 
Subsequent  changes  were  made  in  the  composition  of  the 
"  commission"  of  assize  ;  but  enough  has  been  said  to  show 
the  student  the  provision  made  for  the  ordinary  trial  of  issues 
of  fact. 

It  is  not  material  to  our  purpose  to  trace  the  decadence  of 
the  old  Anglo-Saxon  courts,  and  the  successive  steps  that 
were  taken  to  relieve  the  Westminster  courts  by  the  creation 
of  inferior  jurisdictions.     Nor  will  it  aid  us  to  dwell  upon  the 

^  This  term  will  be  explained  in  connection  with  the  subject,  "Modes  of 
Trial." 

3 


34  COMMON-LAW   PLEADING. 

equity  side  of  the  Exchequer  Court  or  the  law  side  of  the 
Court  of  Chancery.  The  study  of  the  organization  and  juris- 
diction of  Ecclesiastical,  Military,  and  Maritime  Courts,  and 
of  the  great  Court  of  Chancery  itself  exercising  its  extraor- 
dinary or  equity  jurisdiction,  would  be  out  of  place  here. 
Nor  can  we  stop  to  speak  of  courts  of  special  jurisdiction, 
interesting  as  some  of  them  are,  or  of  such  petty  courts  as 
the  piepoudre  and  others.  The  student  desirous  of  fuller  in- 
formation upon  these  points  can  find  it  in  the  authorities 
cited  at  the  end  of  this  chapter. 

JUEISDICTION    OF   CoURT    OF   KiNG'S   BeNCH. 

It  remains  to  consider  somewhat  more  in  detail  the  juris- 
diction of  the  three  great  common-law  courts  as  tliey  existed 
prior  to  the  creation  of  the  Supreme  Court  of  Judicature. 
The  Court  of  King's  Bench  is  the  remnant  of  the  Curia  Regis. 
Like  that  court,  it  purports  to  be  presided  over  by  the  sovereign 
in  person,  although  for  centuries  he  has  had  no  voice  in  its 
deliberations.  It  possesses  the  residuum  of  the  ancient  juris- 
diction of  the  Curia  Regis,  which  has  not  been  parcelled  out 
to  the  other  courts.  Its  judges  are  by  their  office  the  sover- 
eign conservators  of  the  peace.  Its  jurisdiction  is  very  high 
and  transcendent.  It  controls  all  inferior  jurisdictions.  It 
superintends  all  civil  corporations,  and  commands  magistrates 
and  others  to  do  what  their  duty  requires,  in  every  case  where 
there  is  no  other  specific  remedy.  It  protects  the  liberty  of 
the  subject  by  speedy  and  summary  interposition.  It  takes 
cognizance  both  of  criminal  and  of  civil  causes.  On  the  plea 
side,  or  civil  branch,  it  has  original  jurisdiction  of  all  actions 
of  trespass,  or  other  injury  alleged  to  be  committed  vi  et  armis 
(by  force  and  arms) ;  of  actions  for  forgery  of  deeds,  for  main- 
tenance, conspiracy,  and  deceit,  and  of  actions  on  the  case 
which  allege  any  falsity  or  fraud,  —  all  of  which  savor  of  a 
criminal  nature,  although  the  action  is  brought  for  a  civil 
remfidy,  and  make  the  defendant  liable  in  strictness  to  pay  a 
fine  to  the  king,  as  well  as  damages  to  the  injured  party.  The 
same  doctrine  is  now  extended  to  all  actions  on  the  case  what- 
soever ;  but  no  action  of  debt,  or  of  detinue,  or  any  other  mere 


OF   COURTS.  35 

civil  action  can,  by  the  common  law,  be  prosecuted  by  any 
subject  in  this  court  by  original  writ  issuing  out  of  chancery. 
And  yet  this  court  might  always  have  held  plea  of  any  civil 
action  (other  than  actions  real),  provided  the  defendant  were 
an  ofhcer  of  the  court,  or  in  the  custody  of  its  marshal  for  a 
breach  of  the  peace,  or  for  any  other  offence.  When  we  come 
to  consider  the  subject,  "  process,"  we  shall  see  how  by  a 
fiction  this  fact  was  so  made  use  of  as  to  give  this  court  con- 
current jurisdiction  with  the  Court  of  Common  Pleas  in  all 
personal  actions  whatsoever. 

The  Court  of  King's  Bench  is  likewise  a  court  of  appeal, 
into  which  may  be  removed  by  writ  of  error  all  judgments  of 
the  Court  of  Common  Pleas,  and  of  all  inferior  courts  of  record 
in  England. 

Jurisdiction  of  Court  of  Common  Pleas. 

The  Court  of  Common  Pleas  was  originally  the  great  com- 
mon-law tribunal  which  acquired  exclusive  jurisdiction  of  pleas 
or  causes  between  private  or  common  persons.  It  retained 
always  its  exclusive  jurisdiction  of  real  actions.  Sir  Edward 
Coke  named  it,  "  the  lock  and  key  of  the  Common  Law."  ^ 
Another  celebrated  judge  called  it  the  "  Common  Shop  for 
justice."  2  The  early  establisliraent  and  localization  of  this 
court  at  Westminster  gave  rise  to  the  Inns  of  Court  in  its 
neighborhood,  and  collected  there  the  whole  body  of  the  com- 
mon-law lawyers,  thus  strengthening  the  law  itself,  promot- 
ing its  development,  and  enabling  it  to  resist  the  attacks  of 
the  canonists  and  the  civilians  who  labored  to  substitute  for 
it  the  system  of  the  civil  law. 

Jurisdiction  of  Court  of  Exchequer. 

The  Court  of  Exchequer  is  inferior  in  rank  to  both  of  the 
others,  although,  as  has  been  seen,  it  antedates  them.  Orig- 
inally, it  was  charged  only  with  those  causes  that  concerned 
the  king's  revenue.  It  did,  however,  as  we  have  said,  hear 
other  causes  until  forbidden  by  statute  to  do  so,  as  was  also 

1  4  Inst.  79,  99.  2  Sir     Orlando     Bridgman,     State 

Trials,  V.  993. 


36  COMMON-LAW   PLEADING. 

the  case  with  the  Curia  Regis  after  the  establishment  of  the 
Common  Pleas.  And  when,  after  some  hundreds  of  years 
had  passed,  increasing  pressure  upon  the  Common  Pleas,  or, 
possibly,  emulation,  induced  the  King's  Bench  to  resort  to  a 
fictitious  source  of  jurisdiction,  and  to  resume  its  hearing  of 
private  suits  generally,  so,  by  a  similar  fiction  which  will  be 
hereafter  explained,  the  Exchequer  usurped  a  like  jurisdic- 
tion. The  judges  of  the  Court  of  Exchequer  were  for  many 
centuries  one  Chief  Baron  and  three  puisn^  or  junior  Barons^ 
although  when  it  sat  as  a  court  of  equity  it  was  comprised, 
as  at  the  outset,  of  the  Lord  Treasurer,  the  Chancellor  of  the 
Exchequer,  the  Chief  Baron,  and  the  junior  Barons. 

Court  of  Exchequer  Chamber. 

The  Court  of  Exchequer  Chamber  is  exclusively  an  ap- 
pellate court.  It  is  composed  of  the  judges  of  any  two  of 
the  great  Westminster  courts  to  revise  the  judgments  of  the 
third.  For  example,  the  judgments  of  the  King's  Bench 
would  be  revised  by  the  judges  of  the  Common  Pleas  and  the 
Barons  of  the  Exchequer. 

House  op  Peers. 

The  House  of  Peers  or  Lords  is  the  supreme  judicial  tri- 
bunal of  the  kingdom  in  civil  cases,  succeeding  in  that  respect 
the  Curia  Regis  as  originally  constituted.  It  is  the  court 
of  last  resort  in  all  causes,  from  whose  judgment  no  further 
appeal  is  permitted.  Theoretically,  all  peers  sit  as  ultimate 
judges  of  the  law.  In  fact,  however,  only  those  sit  who  are 
known  as  the  "  Law  Lords ;  "  these  are  men  who  have  filled 
high  judicial  stations,  and  most  of  whom  have  been  ad- 
vanced to  the  peerage  (as  chancellors  or  chief  justices)  by 
reason  of  their  eminence  in  the  profession.  The  peers  can 
also,  when  they  desire,  call  upon  all  the  judges  of  England 
to  advise  them  as  to  the  law.  For  centuries  the  decisions  of 
this  august  tribunal  commanded,  as  it  still  commands,  the 
respect  of  the  profession  both  in  England  and  in  our  own 
land. 


OF  COURTS.  37 

We  have  briefly  reviewed  the  organization,  jurisdiction,  and 
growth  of  that  system  of  courts  which  has  made  English  juris- 
prudence. This  growth  has  been  slow  but  healthy  and  strong. 
English  law  has  not  been  a  science,  not  "  an  ideal  result  of 
ethical  or  political  analysis ;  it  is  the  actual  result  of  facts  of 
human  nature  and  history."  ^  In  our  own  new  country  we  have 
accepted  thankfully  this  result,  and  to-day  the  common  law  is 
at  once  the  body  of  our  own  jurisprudence  and  the  heart  which 
nourishes  that  body  and  stimulates  it  to  further  development. 

(Note.  —  In  describing  the  origin  and  history  of  the  common-law  courts, 
we  have  condensed  the  account,  and,  wherever  possible,  used  the  words  of 
Blackstone.  For  details,  the  student  is  referred  to  Book  III.  chap.  4,  of 
his  Commentaries.  Also  to  Professor  Minor's  Commentaries,  Vol.  IV. 
Pt.  I.  pp.  177-190 ;  Professor  Bigelow's  History  of  Procedure,  chap.  iii. ; 
The  King's  Peace  (Inderwick),  chaps,  ii.  and  iii.,  and  finally  to  Pollock 
and  Maitland's  History,  ^assm,  iinder  appropriate  index  references.) 

1  P.  &  M.  Hist.  I.    Introduction,  xxiii. 


CHAPTER    III. 

OF  FORMS  OF  ACTIONS. 

"  So  great  is  the  ascendency  of  the  Law  of  Actions  in  the 
infancy  of  Courts  of  Justice,  that  substantive  law  has  at  first 
the  look  of  being  gradually  secreted  in  the  interstices  of  pro- 
cedure ;  and  the  early  lawyer  can  only  see  the  law  through 
the  envelope  of  its  technical  forms."  ^  What  are  these  tech- 
nical forms  of  actions  ?  In  all  courts  the  party  who  seeks 
to  set  the  court  in  motion  has  to  make  a  statement  which,  by 
whatever  name  it  may  be  called,  is  in  fact  an  assertion  that  a 
wrong  has  been  committed,  including  also  generally  in  the 
civil  courts  a  claim  for  redress.^  Among  our  Anglo-Saxon 
ancestors  these  formal  assertions  grouped  themselves  into  the 
following  divisions :  Actions  for  a  Debt ;  Actions  for  Mova- 
bles ;  Actions  for  Real  Property,  and  Criminal  Procedure.^ 
These  forms,  sometimes  complicated,  were  always  stiff  and 
unbending.  With  respect  to  all  matters  of  procedure,  there 
was  an  iron  rigorism  of  form  and  a  minute  attention  to  exter- 
nal observances.  As  had  happened  among  the  Romans  many 
centuries  earlier,  excessive  subtlety  brought  things  to  such 
a  pass,  that  a  man  who  made  even  the  most  trifling  mistake 
lost  his  suit.^  And  just  as  the  Romans  as  they  advanced  in 
civilization  replaced  the  solemn  and  unyielding  legis  actiones 
(actions  of  the  law)  by  a  more  flexible  formulary  system,  so 
English  law  passed  under  the  dominion  of  a  system  of  writs 
which  issued  from  the  royal  chancery.  This  system  grew  up 
little  by  little.     Its  period  of  most  rapid  growth  was  from  the 

^  Maine's   Early  Law  and   Custom,         ^  Anglo-Saxon  Law,  189. 
389.  *  Hunter's  Roman  Law,  975. 

^  Markby's  Elements  of  La,w,  251. 


OP   FORMS   OP   ACTIONS.  39 

accession  to  the  throne  of  Henry  II.,  in  1154,  to  the  death  of 
his  grandson,  Henry  III., in  1272.  It  came  into  existence  not 
in  response  to  any  theory,  but  to  meet  every-day  needs. 

It  was  through  this  system  of  royal  writs  that  the  jurisdic- 
tion of  the  old  local  courts  was  superseded.  The  King's 
Court  had  originally  been  established  by  the  king's  authority, 
and  its  jurisdiction  in  cases  between  subject  and  subject 
was  in  every  case  based  upon  the  King's  Writ.  A  suitor  who 
wanted  either  to  remove  his  case  from  a  local  into  the  royal 
court,  or  to  sue  at  the  outset  in  the  latter,  bought  the  King's 
Writ  for  that  purpose.  Thus  the  use  of  these  writs  was  stim- 
ulated- by  motives  both  of  royal  policy  and  of  royal  finance. 
A  limit  was  put  to  extortion  through  their  sale  by  the  memo- 
rable provision  of  Magna  Carta :  "  Nulli  vendemus  .  .  . 
justitiam  vel  rectum "  ^  (to  no  one  will  we  sell  justice  or 
right). 

It  was  originally  "  entirely  foreign  to  any  purpose  of  the 
writ  to  set  forth  the  formal  language  of  an  action,"  ^  and  it 
had  at  the  outset  no  connection  whatever  with  the  relief 
sought.  But  soon  "  a  particular  writ  had  come  to  be  the 
only  appropriate  commencement  of  an  action  for  a  particular 
redress,  and  all  writs  to  commence  actions  were  issued  from 
the  Chancery,  an  office  over  which  the  Chancellor  presided."  ^ 
Of  the  Chancery  in  this  connection  Pollock  and  Maitland 
strikingly  say  :  "  The  metaphor  which  likens  the  Chancery  to  a 
shop  is  trite ;  we  will  liken  it  to  an  armory.  It  contains  every 
weapon  of  medieval  warfare  from  the  two-handed  sword  to 
the  poniard.  The  man  who  has  a  quarrel  with  his  neighbor 
comes  thither  to  choose  his  weapon.  The  choice  is  large ; 
but  he  must  remember  that  he  will  not  be  able  to  change 
weapons  in  the  middle  of  the  combat  and  also  that  every 
weapon  has  its  proper  use  and  may  be  put  to  none  other.  If 
he  selects  a  sword,  he  must  observe  the  rules  of  sword  play ; 
lie  must  not  try  to  use  his  cross-bow  as  a  mace.  To  drop 
metaphor,  our  plaintiff  is  not  merely  choosing  a  writ ;  he  is 
choosing  an  action,  and  every  action  has  its  own  rules."  * 

1  2  Tnst.  45.  '  Ker.  Eq.  Ju.  9. 

2  Hist.  Pr.  U7.  4  P.  &  M.  Hist.  II.  559. 


^ 


40  common-law  pleading. 

Divisions  of  Actions. 

The  most  ancient  division  of  formed  actions  is  into  Real, 
Personal,  and  Mixed.  By  formed  actions,  (brevia  formata J  ^ 
are  signified  such  as  were  prescribed  and  provided  by  the 
common  law,  and  wliich  existed  prior  to  the  statute  of  "West- 
minster 2d,  authorizing  actions  on  the  case. 

Real  actions  are  brought  for  the  specific  recovery  of  lands, 
tenements,  or  hereditaments. 

Mixed  actions  are  brought  for  both  the  specific  recovery  of 
lands,  tenements,  or  hereditaments,  and  damages  for  injury 
sustained  in  respect  of  such  property. 

Personal  actions  are  brought  for  the  specific  recovery  of  goods 
and  chattels,  or  for  damages  or  other  redress  for  breach  of  con- 
tract, or  for  other  injuries  of  whatever  description,  the  specific 
recovery  of  lands,  tenements,  and  hereditaments  only  excepted. 

Real  Actions. 

Of  these  divisions  of  actions  English  law  was  for  centuries 
almost  exclusively  concerned  with  the  first,  and  for  manifest 
reasons.  After  the  Norman  conquest  the  warfare  and  fighting 
in  England  "  were  between  the  conquerors  and  the  conquered. 
In  spite  of  war,  defections,  and  some  scattered  revolts,  the 
Norman  barons  and  their  king  work  together,  support  one 
another,  and  march  together  with  one  common  object.  The 
cohesion  of  the  feudal  confederation  and  the  vigor  of  the 
central  power  were  matters  of  actual  necessity  for  them.  .  .  . 
The  territory  was  divided  into  sixty  thousand  one  hundred 
and  fifteen  knight's  fees,  whose  owners  swore,  all  of  them, 
fealty  to  the  king."  ^ 

The  study  of  the  growth  and  development  of  these  real 
actions  is  even  at  this  day  interesting  and  instructive.  At 
the  outset  the  student  must  recall  the  fact  that  no  estate  for 
less  than  life  had  the  dignity  of  a  freehold  estate,  or  was  of  a 
feudal  nature.^  Consequently  there  was  no  real  action  which 
provided  a  remedy  for  injury  to  any  estate  less  than  for  life.  But 
this  is  not  all.     What  a  real  action  was  originally  concerned 

1  Chit.  PI.  82 ;  Bracton,  f.  413,  b.  s  Bl.  Com.  II.  143*. 

2  Abdy's  Feudalism,  333,  334. 


OP   FORMS   OF  ACTIONS.  41 

with  was  only  the  question  of  right  or  title  to  a  freehold  estate. 
The  mere  seisin  or  possession,  as  distinct  from  the  right,  was 
something  which  the  law  did  not  take  under  its  protection, 
and  for  the  deprivation  of  which  it  provided  no  remedy. 

Just  at  this  point  it  will  be  instructive  to  take  an  account 
of  the  remedies  which  the  law  originally  offered  for  injuries 
to  real  estate.  All  real  actions  were  at  first  included  under 
the  following  divisions  :  Writs  of  Right,  strictly  so  called,  and 
"Writs  in  the  Nature  of  Writs  of  Right. 

Writs  of  Right  ^  dealt  not  merely  with  seisina  (possession) 
but  with  jus  (right).  They  did  not  apply  to  any  save  a  fee- 
simple  title.  In  such  case  the  demandant  (plaintiff)  will 
appear  and  claim  the  land  in  dispute  as  his  right  and  inheri- 
tance. "He  will  go  on  to  assert  that  either  he  or  some  ances- 
tor of  his  has  been  seised  not  merely  '  as  of  fee '  but  also  '  as 
of  right.'  He  will  offer  battle  by  the  body  of  a  champion 
who  theoretically  is  also  a  witness,  a  witness  who  testifies  this 
seisin  either  of  his  own  knowledge  or  in  obedience  to  the  in- 
junction of  his  dead  father."  ^  The  person  attacked  in  this 
action,  who  is  called  the  tenant,  always  has  it  in  his  power 
to  deny  the  demandant's  case,  and  to  put  himself  upon  the 
battle.  As  the  result  of  the  trial  a  very  solemn  and  abso- 
lutely conclusive  judgment  is  pronounced;  the  land  is  ad- 
judged to  the  successful  party  and  his  heirs  and  ahjudged 
from  the  other  party  and  his  heirs  forever.  Because  of  the 
conclusiveness  of  the  judgment,  the  law  proceeds  with  great 
deliberation.  Years  may  elapse  before  the  termination  of  the 
action,  and  by  collateral  proceedings  (vouchers  to  warranty )3 
the  lifetime  of  the  demandant  may  be  consumed  in  vain.* 

1  "  Note  of  writs  of  right  (whereof  you  will  do  this,  let  the  sheriff  of  N.  do 

the  praecipe  in  capite  is  one),  some  be  it,  that  we  may  hear  no  more  clamor 

close,  and  some  be  patent.  thereupon  for  want  of  right)  :   which 

"  Writs  of  right  returnable  into  the  clause   is  not    in    the   other  writs,  and 

court  of  common  pleas  be  patent,  and  necessary  it  is  that  such  writs  should 

writs    directed    into  ancient  demesne,  be  patent,  that  the  sheriffe  might  take 

are  close  ;  and  the  reason  wherefore  in  notice  thereof."  —  2  lust.  40. 
other  courts  of  the  lords,  the  writs  shall         But  see  Encyclopaedia  Eritannica,  sub 

be  patent,  is,  because  there  is  a  clause  voc.  "  Writs." 
in  those  writs,  et  nisi  feceris,  vicecomes  ^  1^  &  M.  Plist.  II.  62. 

N.   hoc    facial,    ne    amplius    clamorem  ^  See  post,  Voucher  to  Warranty. 

audiamus  pro  defectu  recti  (and  uuless         *  Booth  on  Real  Actions,  58,  162. 


42  COMMON-LAW   PLEADING. 

Of  these  strict  writs  of  right  there  were  eight  ^  forms,  extend- 
ing from  the  writ  of  right  patent  which  was  "  in  its  nature 
the  highest  writ  in  law,"  ^  lying  only  for  the  assertion  of  an 
estate  in  fee  simple  of  lands  or  tenements,  down  to  the  writ 
of  right  close,  which  lay  for  lands  in  ancient  demesne.  The 
following  is  the  form  of  a  writ  of  right  patent :  — 

Henry  by  the  grace  of  God,  &c.,  to  Henry  Earl  of  Lancaster, 
greeting  :  We  command  you,  that  without  delay  you  do  full  right 
to  A.  of  B.  of  one  messuage  and  twenty  acres  of  land  with  the  ap- 
purtenances in  J.  which  he  claims  to  hold  of  you  by  the  free  ser- 
vice of  one  penny  ^er  annum  for  all  services;  of  which  W.  of  T. 
deforceth  him;  and  unless  you  will  do  this,  let  the  sheriff  of 
Nottingham  do  it,  that  we  may  hear  no  more  clamour  thereupon 
for  want  of  right.     Witness,  &c.^ 

Writs  in  the  Nature  of  a  Writ  of  Right  included  fourteen  * 
different,  forms,  and  they  were  so  called  because  some  of  them 
might  be  brought  by  tenant  for  life  or  in  tail,  and  in  others  of 
them  battle  did  not  lie,  while  in  most  of  them  relief  was  sought 
for  other  things  than  injuries  to  the  mere  right  to  lands  and 
tenements.^ 

These  forms  covered  a  large  remedial  field,  and,  until  the 
time  of  Henry  II.,  they  were  thought  adequate  for  the  needs 
of  the  age  with  respect  to  injuries  to  real  estate. 

Development  of  Real  Actions. 

It  appears  that  a  distinctly  possessory  action  is  not  native 
in  the  law  of  the  Anglo-Saxon  race.^  It  required  such  a 
king  as  Henry  H.  to  transplant  upon  English  soil  the  idea, 
underlying  the  Roman  interdict  iinde  vi,'  that  a  possession 
acquired  by  force  was  wrongful.  In  the  year  1166,  we  meet 
first  with  the  assize  of  novel  disseisin,  a  new  and  possessory 
action.  This  assize,  in  order  to  prevent  further  violence, 
protects  a  possession  which  has  been  acquired  without  title 

1  Com.  Dig.  Action  (D.  2),  6  p.  &  m.  Hist.  IT.  46. 

2  F.  N.  B.  1,  A.  7  "  Whence  bv  force."  The  essen- 
8  F.  N.  B.  1,  G.  tial  character  of  this  interdict  was  that 
*  Com.  Dig.  Action  (D.  2).  it  was  available  for  a  mere  possessor, 
6  Booth  on  Real  Actions,  Book  II.  whether  he  was  owner  or  not.     Hon- 

chap.  IX.  ter's  Roman  Law,  250,  332,  372. 


OP   FORMS   OF   ACTIONS.  43 

and  by  force.  A  lawful  tenant  in  fee  or  for  life  is  ejected  by- 
one  who  has  no  right  w^iatever  to  the  land  in  dispute;  the 
assize  in  such  case  puts  a  strict  bound  to  tlie  lawful  owner's 
right  of  self-help  ;  he  must  re-eject  the  disseisor  promptly,  or 
he  must  himself  bring  the  assize  of  novel  disseisin,  and  appeal 
to  the  law  to  restore  to  him  that  possession  of  which  he  has 
been  wrongfully  deprived.  The  law  does  evil  that  good  may 
come  of  it,  and  "  protects  the  land-grabber  against  his  victim 
in  order  that  land  may  not  be  grabbed."  * 

This  assize  of  novel  disseisin  is  quick  in  action  and  effective 
in  remedy.  No  question  of  title  is  heard.  Has  there  in  fact 
been  a  novel  (recent)  disseisin  ?  If  so,  the  possession  taken 
forcefully  must  be  given  up  to  the  person  from  whom  it  was 
seized,  though  he  himself  may  be  a  disseisor  without  right. 

This,  we  see  at  once,  is  a  long  step  forward.  Yet  it  is 
soon  apparent  that  the  new  remedy  is  incomplete.  The 
action  lies  for  the  disseisee  against  the  disseisor,  but  it  does 
not  lie  for  the  heir  of  the  disseisee,  nor  against  the  heir  of 
the  disseisor  (to  mention  only  two  parties  whom  it  fails  to 
reach),  because  the  heir  of  the  disseisor  is  not  himself  guilty 
of  any  disseisin  in  the  view  of  the  law,  and  the  heir  of  the 
disseisee  has  not  been  disseised. 

Before,  however,  this  defect  is  supplied,  the  law  provides 
another  speedy  remedy  for  the  recovery  of  possession  in  the 
case  where,  upon  the  death  of  an  ancestor  within  a  certain 
degree,  a  stranger  enters  and  abates.  This  remedy  is  called 
the  assize  of  mort  d'ancestor.  Where  the  ancestor  is  beyond 
this  degree,  then  the  writ  is  changed  in  name  so  as  to  express 
the  relationship,  for  example,  if  the  ancestor  be  a  grandfather, 
it  becomes  aiel^  great  grandfather,  besaiel,  great-great-grand- 
father, tresaiel,  and  for  collateral  relations  other  than  uncle 
and  aunt  (who  come  within  the  mort  d'ancestor),  it  is  called 
a  writ  of  eosinage. 

All  of  these  assizes  were  much  alike  in  that  they  turned 
upon  the  question  of  the  demandant's  possession  ;  was  he 
or  his  predecessor  in  right  in  peaceable  possession  at  such  or 
such  a  time  ? 

1  P.  &  M.  Hist.  II.  52. 


44  COMMON-LAW  PLEADING. 

To  provide  a  further  remedy  for  cases  in  which  these 
assizes  had  never  applied,  and  also  to  extend  their  pur- 
pose to  degrees  which  they  failed  to  reach,  a  whole  group 
of  writs  was  invented  which  stood  midway  between  the 
possessory  assizes  and  the  writ  of  right.  We  meet  with 
the  first  of  these  writs  in  the  year  1205.^  All  of  these  new 
writs  assert  the  demandant's  right  by  alleging  a  recent  flaw 
in  the  tenant's  title.  They  say  that  the  tenant  had  no  right 
of  entry  into  the  land  in  dispute  save  in  a  certain  mode  which 
they  describe  and  attack.  If  there  has  been  a  disseisin,  they 
say  that  the  tenant  had  no  entry  unless  through  (per)  the 
disseisor,  or  through  B,  to  whom  (per  and  cui)  the  disseisor 
had  aliened  or,  when  the  degree  is  more  remote  still,  after 
(post)  the  disseisin  wrought  by  the  original  disseisor.  So  also, 
there  were  writs  of  entry  upon  intrusion  after  the  death  of  the 
particular  tenant,  or  after  a  certain  term  which  had  expired, 
or  when  land  was  given  to  a  man  by  a  woman  whom  he  had 
promised  to  marry,  which  land  he  retained,  although  refusing 
to  marry  the  woman.  So  these  writs  of  entry  lay  upon  aliena- 
tion (1)  by  a  person  legally  incapable  of  aliening  [as  an  idiot 
or  minor],  (2)  by  a  particular  tenant,  and  (3)  by  the  husband 
of  the  wife's  estate. 

There  was  one  principle  governing  all  of  these  actions : 
there  was  no  going  behind  the  entry  charged.  If  that  entry 
was  unlawful,  and  if  the  tenant  derived  his  possession  through 
it,  there  could  be  no  question  of  proprietary  right.^ 

The  advance  which  English  real  actions  have  made  up  to 
this  point,  has  been  thus  graphically  resumed  by  Pollock 
and  Maitland :  "  A  graduated  hierarchy  of  actions  has 
been  established.  '  Possessoriness '  has  become  a  matter  of 
degree.  At  the  bottom  stands  the  novel  disseisin,  possessory 
in  every  sense,  summary  and  punitive.  Above  it  rises  the 
mort  d'ancestor,  summary  but  not  so  summary,  going  back 
to  the  seisin  of  one  who  is  already  dead.  Above  this  again 
are  writs  of  entry,  writs  which  have  strong  affinities  with  the 
writ  of  right,  so  strong  that  in  Bracton's  day  an  action  begun 
by  writ  of  entry  may  by  the  pleadings  be  turned  into  a  final, 

1  P.  &  M.  Hist.  IL  64.  2  Ibid.  II.  67. 


OF   FORMS  OF   ACTIONS.  45 

proprietary  action.  The  writs  of  entry  are  not  so  summary 
as  are  the  assizes,  but  they  are  rapid  when  compared  with 
the  writ  of  right ;  the  most  dilatory  of  the  essoins  (excuses) 
is  precluded ;  there  can  be  no  battle  or  grand  assize.  Ulti- 
mately we  ascend  to  the  writ  of  right.  Actions  are  higher 
or  lower,  some  lie  '  more  in  the  right '  than  others.  You 
may  try  one  after  another  :  begin  with  the  novel  disseisin,  go 
on  to  the  mort  d'ancestor,  then  see  whether  a  writ  of  entry 
will  serve  your  turn,  and,  having  failed,  fall  back  upon  the 
writ  of  right."  ^ 

It  is  true  that  this  elaborate  scheme  of  redress  for  injuries 
to  the  title  or  possession  of  real  estate  has  been  completely 
superseded.  Real  actions  would  be  brought  nowhere  to-day. 
And  yet  it  is  necessary  for  the  mastery  of  English  law  that 
their  rise,  development,  and  displacement  should  be  studied 
and  understood.  The  student  is  recommended  to  read  Pol- 
lock and  Maitland's  History,  Vol.  II.  chapters  YV.  and  IX. 
Those  desiring  to  pursue  the  subject  further  can  consult 
Booth  on  Real  Actions  and  Fitzherbert's  Treatise  on  Writs 
(de  Natura  Brevium). 

Mixed  Actions. 

The  only  mixed  actions  which  it  is  necessary  to  especially 
mention  are  Quare  Impedit  (wherefore  he  obstructed),  by 
which,  when  the  right  of  a  party  to  a  benefice  was  obstructed, 
he  could  recover  the  presentation  ;  and  Waste,  to  recover  land 
wasted  and  treble  damages  for  the  waste  committed  thereon  ; 
but  the  equitable  remedy  to  enjoin  waste  is  so  much  more  effec- 
tive, that  this  action  is  obsolete.  Ejectment  cannot  be  called 
in  strictness  a  mixed  action ;  ^  we  shall  speak  of  it  later  in 
detail.  It  is  enough  to  say  here  that  it  is  to-day  the  gen- 
eral remedy  for  the  trial  of  title  to  real  estate,  and  has 
displaced  all  real  actions.  In  the  United  States  a  forcible 
entry  and  detainer  is  punished  by  criminal  proceedings,  the 
English  Statute  of  6  Ric.  2,  St.  1,  or  some  substitute  therefor 

1  P.  &  M.  Hist.  II.  74,  Placock,  Cro.  Jac.  21.     See  also  F.  N.B. 

2  Selw.  N.  P.  II.  692,  u.  (1 ) ;  Matthew  Ejectione  Jirmce,  220  H,  n.  (a) ;  Steph. 
V.  Hassell,  Cro.  Eliz.  144  ;  Harebottle  v.    PI.  note  3. 


46  COMMON-LAW   PLEADING. 

applying  to  such  cases.  Yery  generally  also  in  this  country 
summary  proceedings  are  provided  by  the  law  for  the  re- 
covery of  the  possession  of  real  estate,  where  the  owner  has 
been  unlawfully  deprived  of  such  possession. 

Personal  Actions. 

As  we  have  seen,  English  procedure  at  its  origin  was  almost 
entirely  confined  to  remedies  for  injuries  to  real  estate  and  to 
its  possession.  It  is  said  by  Mr.  Buckler,  in  his  recent  mono- 
graph upon  the  origin  and  history  of  contract  in  Roman  law, 
that  "  poverty  of  contract  was,  in  fact,  a  striking  feature 
of  the  early  Roman  law.  .  .  .  The  origin  of  contract  as  a 
feature  of  social  life  was  simultaneous  with  the  birth  of 
trade.  ...  As  Roman  civilization  progresses,  we  find  com- 
merce extending  and  contracts  growing  steadily  to  be  more 
complex  and  more  flexible."  ^ 

In  striking  similarity  with  the  above  statement,  we  learn 
from  Pollock  and  Maitland's  History  of  English  Law  that 
"  the  law  of  contract  holds  anything  but  a  conspicuous  place 
among  the  institutions  of  English  law  before  the  Norman 
conquest.  In  fact,  it  is  rudimentary.  Many  centuries  must 
pass  away  before  it  wins  that  dominance  which  we  at  the 
present  day  concede  to  it.  Even  in  the  schemes  of  Hale 
and  Blackstone,  it  appears  as  a  mere  supplement  to  the  law 
of  property."  2 

Our  ancestors  did  not  at  first  conceive  of  what  we  to-day 
call  a  contract,  that  is,  a  transaction  which  depends  for  its 
validity  upon  the  mere  agreement  of  the  parties  thereto.  They 
only  knew  what  would  be  termed,  in  Roman  law,  formal  and 
real  contracts.  A  formal  contract  with  the  Romans  was 
one  which  derived  its  binding  force  from  the  fact  that  it  had 
been  concluded  through  a  certain  ceremony  Qper  aes  et 
libram,  with  the  copper  and  the  scales),  or  that  a  certain 
prescribed  question  had  been  asked  and  answered  in  a  man- 
ner also  prescribed,  or  that  an  entry  had  been  made  in  a  cer- 
tain book.     A  real  contract  on  the  other  hand  was  one  which 

1  Contract  in  Eoman  Law,  Introduc-         ^  p.  &  m.  Hist.  11.  182. 
tion,  1,  2. 


OP  FORMS   OP  ACTIONS.  47 

required  for  its  formation  the  delivery  of  some  specific  thing, 
as  a  deposit,  a  loan  for  use  or  a  pledge.^  Neither  the  formal 
nor  the  real  contract  was  what  we  should  to-day  call  a  con- 
tract, for  the  consent  of  the  parties  involved  was  not  the 
source  of  obligation.  In  the  first  case  the  question  was,  has 
a  certain  form  been  followed  ?  In  the  second  case,  has  a  cer- 
tain thing  been  delivered  by  one  party  to  the  other  ? 

With  our  ancestors  sale  was  a  real  and  not  a  consensual 
proceeding.  To  them  sale  and  exchange  were  known  simply 
as  completed  transactions  ;  the  money  was  paid  when  the 
object  sold  was  delivered,  and  no  such  thing  as  a  credit 
or  an  obligation  to  be  discharged  at  some  future  time  was 
thought  of.  Loans  were  made,  but  the  borrower  had  to 
return  the  exact  thing  loaned.  Pledges  and  gages  were  also 
given,  but  it  was  a  long  time  before  any  idea  of  contractual 
obligation  in  connection  with  these  arose.  The  recipient  of 
the  gage  was  bound  to  hand  it  back  if,  within  due  time,  its 
giver  came  to  redeem  it.  This  was  his  duty  rather  than  his 
contract  obligation.  If  the  gage  was  not  restored,  the  owner 
would  reclaim  it  thus  :  "  You  unjustly  detain  what  is  mine." 
We  see  clearly  that  such  contracts  were  what  were  called 
real.  They  depended  upon  a  fact  and  not  upon  an  agreement. 
There  is  but  one  formal  contract  in  English  law,  the  deed 
or  contract  under  seal ;  all  others  are  simple  contracts  re- 
quiring, when  executory,  both  consideration  and  consent.^ 
The  transition  from  the  real  to  the  formal  contract  in  English 
law  appears  with  what  was  called  the  pledge  of  faith.  When 
men  shook  hands  over  a  bargain,  they  went  through  a  form 
which  both  made  and  bound  that  bargain,  and  gave  it  a  cer- 
tain legal  status.  Such  a  formal  contract  was  never  enforced 
among  the  English  by  the  secular  courts.  It  was,  however, 
at  once  seized  upon  by  the  ecclesiastical  courts  as  a  source  of 
jurisdiction.  According  to  the  Gregorian  statute  book,  even 
the  nude  pact  could  be  enforced,  at  any  rate  by  penitential 
discipline.     We  find  that  early  in  the  reign  of  Henry  II.,  the 

1  Hunter's    Eoman    Law,   451-490.         2  ^iison's  Law  of  Contract,  56. 
Howe's  Studies  in  the  Civil  Law,  Lec- 
ture VL 


48  COMMON-LAW  PLEADING. 

ecclesiastical  courts,  even  the  Roman  Curia,  were  discussing 
agreements  made  by  Englishmen  with  pledge  of  faith.^  After 
the  quarrel  with  Becket,  and  in  consequence  of  that  quarrel, 
the  English  justices  in  Glanvill's  day  had  set  their  faces 
against  what  might  otherwise  have  become  the  English  for- 
mal contract,  and  had  determined  that  the  grasp  of  hands  or 
the  giving  of  the  gage  are  not  sufficient  to  constitute  a  formal 
contract.  Blackstone  has  recorded  how  in  his  day  men  shook 
hands  over  a  bargain.^  The  practice  has  come  down  to  us, 
but  all  of  the  meaning  went  out  of  it  when,  in  1166,  the 
fifteenth  section  of  the  Constitution  of  Clarendon  provided 
thus:  "Pleas  of  debt  which  are  due  by  pledge  of  faith,  or 
without  pledge  of  faith,  belong  to  the  King's  justiciar."  ^ 
Thereafter  the  ecclesiastical  courts  could  not,  and  tlie  King's 
Court  would  not,  enforce  agreements  made  only  with  pledge 
of  faith. 

Division  of  Personal  Actions. 

We  can  now  understand  that  when  we  divide  personal 
actions  into  those  arising  ex  contractu^  or  on  contract,  and  ex 
delicto^  or  from  tort,  we  are  using  a  division  which  is  younger 
than  the  actions  included  under  it.  The  formed  actions  of 
debt,  detinue,  and  covenant  existed  before  the  idea  of  con- 
tract, as  we  are  familiar  with  it,  was  born. 

Formed  Actions  ex  Contractu. 

Of  these  formed  actions  ex  contractu,  there  are  Debt, 
Detinue,  Covenant,  Account,  and  Scire  Facias.^ 

Debt. 

"We  must  now  turn  to  the  action  of  debt  which  is  prob- 
ably the  oldest  of  the  formed  actions  upon  contract.  We 
do  not  meet  with  it  more  frequently  in  early  days  because 
a  shrewd  creditor  then  obtained  as  security  a  judgment  or 
a  recognizance  against  his  would-be  debtor  before   the  loan 

1  P.  &  M.  Hist.  IL  196.  whichtheplaiutiff  demanded  the  arrears 

2  Bl.  Com.  II.  448*.  of  an  annual  rent  that  was  due  to  him. 

3  Hist.  Pr.  37.  It  has  been  for  a  long  time  obsolete,  and 
*  The  action  of  Annuity  was  one  in  merits  no  further  notice  here. 


OF  FORMS   OF   ACTIONS.  49 

was  made,  and  hence  would  not  be  compelled  to  sue  on 
non-payment  of  the  loan.  In  Glanvill's  time  we  find  an 
action  of  debt  in  the  King's  Court.  From  the  form  of  the 
original  writ  in  debt  the  development  of  it  from  the  original 
writ  in  a  real  action  is  evident.  The  creditor  is  being  deforced 
of  money,  just  as  the  demandant  who  brings  a  writ  of  right  is 
being  deforced  of  land.^  The  modern  action  of  ^bt  is  lineally 
descended  from  the  writ  of  right  for  money-debt,  and  is  there- 
fore in  its  origin  what  that  always  was,  a  real  action!^ 

The  very  language  of  the  writ  is  significant  of  the  way  in 
which  our  ancestors  thought  of  contract.  A  debtor  was  noti 
violating  his  agreement.  He  was  deforcing  his  creditor  off 
his  due.  The  action  of  debt  was  rare  at  first ;  but,  as  trade 
developed,  it  became  much  more  frequent.  "  First  from  the 
Jew,  then  from  the  Lombard,  Englishmen  were  learning  to 
lend  money  and  to  give  credit  for  the  price  of  goods."  ^  We 
may  see  the  action  of  debt  gradually  losing  some  of  the 
features  which  it  had  in  common  with  the  actions  in  which 
a  man  claimed  his  property.  The  idea  of  personal  obligation 
begins  to  manifest  itself.  The  offer  of  battle  as  a  mode  of 
proof  of  debt  disappears  so  early  that  no  record  of  a  case  of 
it  remains.  Thus  the  writ  of  right  for  land,  and  "  what  we 
might  well  call  the  writ  of  right  for  money,"  begin  to 
separate. 

Very  soon  the  action  of  detinue,  in  its  turn,  detaches  itself 
from  the  action  ~6f  debt.  In  the  writ  for  debt,  it  was  said 
"  the  defendant  debet  (owes)  et  detinet  (and  detains)  the 
surn^  claimed."  But  lawyers  began  to  feel  that  in  certain 
cases  the  word  "  debet "  should  not  be  used.  One  ought  not 
to  say  debet  when  there  has  been  a  specific  chattel  loaned 
(commodatum).  Even  when  there  is  a  money  loan  (mutuum) 
the  word  "  debet "  should  only  be  used  so  long  as  both  parties 
to  the  transaction  are  alive  ;  if  either  dies,  the  money  may  be 
unlawfully  detained  by  the  representative  of  the  one  from  the 
representative  of  the  other  ;  but  there  is  no  longer  any  owing 
of  money, 

1  Hist.  Pr.  163.  «  P.  &  M.  Hist.  II.  204. 

2  Ibid.  160. 


50  COMMON-LAW  PLEADING. 

Debt  is  at  first  used  to  recover  money  loaned.  Soon  it  is 
brought  for  the  price  of  goods  sold.  Even  in  the  time  of 
Edward  I.  the  action  of  debt  was  very  rarely  employed  save 
for  five  purposes :  it  was  used  to  obtain  (1)  money  lent,  (2) 
the  price  of  goods  sold,  (3)  arrears  of  rent  due  upon  a  lease 
for  years,  (4)  money  due  from  a  surety,  and  (5)  a  fixed  sum 
promised  by  a  sealed  document.^  As  this  action  is  entirely 
independent  of  what  we  should  call  a  contract,  we  soon  find 
that  it  can  be  used  whenever  a  fixed,  a  certain  sum,  is  due 
from  one  man  to  another.  Statutory  penalties,  forfeitures 
under  by-laws,  amercements  inflicted  by  inferior  courts, 
money  adjudged  by  any  court  to  be  due,  can  each  and  all 
be  recovered  by  it.  There  was  as  yet  no  thought  of  a  quid 
pro  quo  (what  for  what),  a  consideration.  The  action  began 
with  an  assertion  of  right  to  a  sum  of  money  unjustly  with- 
held, and  developed  from  that  conception.  That  a  promise 
is  the  ground  of  action  is  not  imagined.  The  plaintiff  in  his 
declaration  will  also  mention  some  causam  dehendi  (cause  of 
owing)  and  that  cause  will  not  be  a  promise.  This  is  well 
expressed  in  a  Norman  maxim,  "  Ex  promisso  auiem  nemo 
debitor  constituitur,  nisi  causa  precesserit  legitima  promit- 
tendi^^  which  translated  is,  "  But  no  one  is  made  a  debtor 
by  a  promise,  unless  there  lias  preceded  a  legitimate  cause  for 
the  promise."  ^  Thus  if  you  sue  in  debt  you  must  rely  on  a 
loan,  a  sale,  or  some  other  similar  transaction,  which  is  a 
legitimate  support  of  a  promise,  and  not  on  any  one's  promise 
distinct  from  such  support. 

In  the  action  of  debt,  if  the  plaintiff  had  not  something  to 
show  for  his  debt,  for  example,  a  sealed  instrument,  the  de- 
fendant's denial  of  the  debt  by  oath  with  oath-helpers  turned 
the  plaintiff  out  of  court.  This  was  called  "  wager  of  law," 
and  will  be  more  fully  explained  hereafter  when  we  speak~of 
modes  of  trial.  It  is  enough  to  say  here  that  it  consisted  in 
the  defendant's  swearing  that  he  owed  nothing,  and  then 
having  eleven  of  his  neighbors  swear  that  they  believed  his 
assertion.  The  facility  of  escape  which  this  privilege  gave  to 
the  defendant  in  the  case  caused  the  partial  disuse  both  of 

1  P.  &  M.  Hist.  II.  208.  a  Ibid.  II.  210 


OP  FORMS   OF   ACTIONS.  51 

this  action  and  of  detinue,  its  child.  We  have  not  space  to 
follow  Mr.  Justice  Holmes  in  his  inquiry  into  the  develop- 
ment of  this  action,  in  connection  with  the  vexed  subject  of 
the  birth  and  growth  of  the  idea  of  "  consideration  "  as  neces- 
sary to  sustain  a  simple  contract ;  he  maintains  that  this  is 
one  of  the  instances  in  which  "  an  accident  of  procedure  " 
became  "  a  doctrine  of  substantive  law."  The  student  is  re- 
ferred for  further  information  on  this  subject  to  Lectures  VII. 
and  VIII.  of  "  The  Common  Law."  ^ 

The  action  of  debt,  as  ultimately  developed,  was  an  extensive 
remedy.     It  lay  to  recover  money  in  four  classes  of  cases.^ 

i.  On  records,  as  upon  the  judgment  of  a  superior  or  in- 
ferior court  of  record.  At  common  law,  debt  was  the  only 
remedy  upon  a  judgment  after  a  year  and  a  day  had  elapsed 
from  the  time  of  its  recovery,  for  in  such  case  execution  could 
not  issue  thereon,  as  it  was  presumed  to  be  satisfied.  Debt 
was  sometimes  brought  upon  a  recognizance  against  those 
who  were  bound  thereby.  So  it  lay  upon  a  statute  merchant, 
which  was  in  the  nature  of  a  judgment.  Debt  also  lay  against 
a  sheriff  who  had  collected  money,  and  had  not  paid  it  over, 
for  his  return  of  '■'•fieri  feci "  (I  have  caused  to  be  made)  was 
in  the  nature  of  a  record. 

II.  On  statutes.  If  a  statute  prohibit  the  doing  of  an  act 
under  a  penalty  or  forfeiture  of  a  sum  of  money,  to  be  paid  to 
the  party  aggrieved  or  to  a  common  informer,  and  do  not 
prescribe  any  other  mode  of  recovery,  debt  will  lie  at  the  suit 
of  those  entitled  to  recover  such  sum. 

It  will  be  observed  that  in  this  and  the  preceding  cases 
there  is  no  contract  to  support  the  action. 

III.  For  money  due  on  any  specialty  or  contract  under 
seal  to  pay  money,  as  on  single  bonds  (bonds  without  condi- 
tion), on  charter  parties,  on  policies  of  insurance  under  seal, 
and  on  bonds  conditioned  for  the  payment  of  money  (or  for 
the  performance  of  any  other  act)  it  lay  by  or  against  the 
parties  to  any  such  instrument,  and  their  personal  repre- 
sentatives. In  all  of  these  cases,  the  debt  was  created  by  the 
act  of  the  parties  to  be  charged  in  executing  the  instrument 

1  See  also  Hist.  Pr.  160-165.  2  Chit.  PI.  97-102. 


52  COMMON-LAW   PLEADING. 

under  seal  which  is  sued  on.  In  other  words,  we  have  here 
the  formal  contract  of  English  law. 

lY.  On  simple  contracts  and  legal  liabilities,  debt  lay  to 
recover  money  lent,  paid,  had  and  received,  or  due  on  account 
stated;  also  for  interest  due  on  the  loan  or  forbearance  of 
money;  for  the  reasonable  WOrth  (quanfum  meruit)  of  work 
and  labor  done,  of  goods  sold,  for  fees,  for  use  and  occupation 
of  a  house,  on  a  demise  not  under  seal,  and,  generally,  for  the 
omission  of  any  duty  created  by  common  law  or  custom ;  again 
it  lay  on  an  award  to  pay  money,  on  by-laws  for  fines  and  on 
amercements,  on  judgments  of  domestic  courts  not  of  record, 
and  of  foreign  courts.  It  lay  generally  wherever  an  act  of  the 
plaintiff  had  benefited  the  defendant  in  some  certain  sum  of 
money  which  the  defendant  ought  to  pay  ;  the  duty  creates 
the  debt. 

In_n0iie  of  these  classes  of  cases  was  debt  sustainable  un- 
less the  demand  was  for  a  sum  certain,  or  for~a  pecuniary 
demand  which  could  readily  be  reduced  by  reference  or  com- 
putation  to  a  certainty. 

In  some  cases  debt  is  the  peculiarly  appropriate  remedy,  as 
where  a  lessee  has  been  ousted  from  a  part  of  the  demised 
premises  by  a  third  person,  in  which  case  he  can  be  sued  in 
debt  for  an  apportionment  of  the  rent,  since  privity  of  estate 
still  exists  between  the  lessor  and  lessee  as  to  the  part  yet 
possessed  by  the  latter,  and  debt  is  the  peculiar  remedy  to 
recover  rent  where  privity  of  estate  exists,  although  privityof 
contract  may  never  have  existed.  It  is  also  the  only  remedy 
against  a  devisee  of  land  for  the  breach  by  the  devisor  of  a 
covenant  relating  to  this  land,  since  in  such  case  the  liability 
of  the  devisee  depends  upon  his  succession  to  the  devised  land, 
and  his  consequent  legal  duty  to  respond  for  any  breach  of 
such  covenant  by  the  person  from  whom  he  derived  such 
succession.^ 

We  will  gain  additional  knowledge  of  the  peculiar  features 
of  this  action  if  we  consider  the  instances  in  which  it  did  not 
lie.  Originally,  debt  for  rent  was  confined  to  the  recovery 
of   arrears   in   cases   where   the   estate   in  the  rent  was  for 

1  Chit.  PI.  102. 


OP   FORMS  OF  ACTIONS.  53 

years  only.  A  remarkable  doubt  was  long  entertained  in 
England  as  to  whether  a  personal  action  could  be  maintained 
for  the  arrears  of  a  freehold  rent,  the  idea  being  that  such 
arrears,  like  a  freehold  estate  in  land,  could  be  recovered  only 
by  a  real  action,  thus  confounding  the  profits  of  the  rent 
(which  are  as  much  personalty  as  wheat  or  corn  severed  from 
the  land)  with  the  rent  itself.^  In  consequence  of  this  doubt, 
certain  real  actions  (cessavit  and  others)  were  used  to  recover 
the  arrears  of  freehold  rents  wherever  a  distress  would  not 
apply.  It  was  not  until  the  statutes  of  8  Anne,  c.  14,  and 
6  George  III.  c.  17,  were  passed  that  debt  was  used  in  such 
'cases.  Debt  could  not  be  supported  on  a  simple  contract 
against  an  executor,  because  in  such  case  the  testator  could 
have  waged  his  law  if  sued  when  living.  But  as  there  was 
rib  wager  of  law  allowed  in  the  Court  of  Exchequer,  there 
debt  could  be  brought  against  an  executor  on  a  simple  con- 
tract, as  it  could  also  be  brought  in  the  other  courts  in  cases 
in  which  the  testator,  if  living,  could  not  have  waged  his  law. 
Where  the  lessor  has  accepted  rent  from  the  assignee  of  the 
lessee,  he  cannot  sustain  debt  against  the  lessee  or  his  per- 
sonal representatives,  but  must  proceed  by  action  of  covenant 
on  the  express  contract.  The  reason  for  this  provision  is 
found  in  the  fact  above  stated,  that  debt  for  rent  was  grounded 
upon  privity  of  estate  (upon  the  duty  of  the  occupier  of  land 
to  pay  its  owner  the  worth  of  such  occupation)  and  not  upon 
privity  of  contract.  Of  course,  the  lessee  remained  liable 
upon  his  express  contract  to  pay  rent ;  but  this  was  absolutely 
a  contract  liability,  and  covenant  was  the  remedy  for  the 
breach  of  that  contract.  Jt  was  doubtful  at  common  law 
whether  debt  would  lie  against  the  indorser  of  a  negotiable 
security,  or  the  drawer  of  a  bill  of  exchange,  because  in  these 
cases  the  liability  depends  not  upon  the  writing  only,  but 
upon  collateral  acts ;  i.  e.,  presentment  and  demand  of  pay- 
ment and  notice  of  dishonor.  It  was  said  debt  would  not  lie 
upon  a  bill  of  exchange  against  the  acceptor ;  for,  though  the 
acceptance  binds  by  the  custom  of  merchants,  yet  it  does  not 
create  a  duty  any  more  than  a  promise  made  by  a  stranger  to 
1  Min.  Inst.  IV.  130 ;  Com.  Dig.  Title  "  Debt,"  A.  7. 


54  COMMON-LAW  PLEADING. 

pay,  etc.,  if  the  creditor  will  forbear  his  debt;  the  drawer  of 
the  bill  is  the  debtor,  and  continues  to  be  the  debtor,  notwith- 
standing the  acceptance,  for  that  is  a  collateral  engagement 
only.^  Debt  was  not  sustainable  where  the  simple  contract 
was  for  the  payment  of  the  debt  of  a  third  person,  or  for  other 
collateral  act.  Since  debt  lay  only  in  cases  where  a  legal  duty 
arose  from  a  fact,  the  mere  promise  of  a  man  to  pay  the  debt 
of  another,  or  to  do  some  collateral  act,  was  not  a  fact  which 
imposed  a  duty.  It  was,  it  is  true,  a  promise,  but  a  mere 
promise  did  not  then  create  a  duty ;  it  could  only  be  legally 
enforced  when  it  was  made  in  the  form  of  a  covenant.  This 
primitive  rule  continued  to  apply  after  the  law  recognized 
promises  made  upon  a  consideration  as  creating  a  legal  lia- 
bility. This  action  does  not  lie  for  a  debt  payable  by  instal- 
ments, and  not  secured  by  penalty,  until  all  are  due,  —  a 
doctrine  for  which  no  satisfactory  reason  can  be  given,  and 
which  is  in  direct  conflict  with  an  early  case,^  but  which  is 
too  well  established  by  authority  to  be  disregarded.^  Formerly 
it  was  thought  that  in  an  action  of  debt  on  simple  contract, 
the  precise  sum  stated  to  be  due  in  the  declaration  must  be 
recovered,  or  the  plaintiff  would  be  non-suited ;  but  this  idea 
no  longer  prevails,  and  the  plaintiff  will  recover  if  he  prove 
any  sum  to  be  due  to  liim.^ 

Actions  of  debt  brought  for  money  loaned,  for  money  had 
and  received,  etc.,  differ  from  what  are  known  as  the  "  common 
counts,"  and  which  will  be  hereafter  considered  under  the  head 
of  General  Assumpsit ;  debt  is  brought  upon  a  sale  or  loan  as 
a  fact  in  itself,  and  not  on  any  promise  connected  therewith. 

It  is  said  that  debt  also  lies   in  the  detinet  for  goods,  as 

1  Hard's  case,   Salk.  23.    It  will  be  contract  between  the  parties.    It  will, 

perceived  by  the  student  that  this  rea-  therefore,  lie  at  the  suit  of  the  drawer 

soning  is  not  harmonious.     It  is,  how-  against   the   acceptor;     by   the    payee 

ever,  characteristic.     For  a  commentary  against  the  drawer  of  a  bill  or  check, 

upon  it,  reference  should  be  made  to  the  or  maker  of  a  note  ;  by  first  indorsee 

opinion  of  Story,  J.,  in  the  case  of  Ra-  against  the  drawer  of  a  bill  payable  to 

borg  et  al.  v.  Peyton,  2  Wheaton,  388.  his  own  order ;  and  in  all  cases  by  in- 

The   law   upon   the    subject   is    stated  dorsee  against  his  immediate  indorser." 
in   Byles    on    Bills,    333*,   as   follows :         -  March  v^  Freeman,  3  Lev.  383. 
"Debt  is  of  a  limited  application,  and         3  Min.  Com.  IV.  459. 
will  only  lie  where  there  is  a  privity  of         *  Chit.  PI.  103, 


OP   FORMS   OF  ACTIONS.  65 

upon  a  contract  to  deliver  a  quantity  of  malt.  This  form  of 
the  action  differs  from  detinue,  in  that  the  property  in  any 
specific  goods  need  not  be  vested  in  the  plaintiff  at  the  time 
the  action  is  brought,  which  is  essential  in  detinue.  But  this 
form  is  probably  a  survival  of  the  time  when  debt  in  the  debet 
and  debt  in  the  detinet  were  the  same  action. 

Since  this  action  was  brought  for  the  recovery  of  a  debt 
eo  nomine  and  in  numero  (by  that  name  and  for  a  definite 
amount),  only  nominal  damages  were  awarded  for  the  detention 
of  the  debt,  and  they  generally  covered  only  interest  thereon. 

The  declaration^  in  debt,  if  on  simple  contract,  must  show  "? 
the  fact  from  which  the  duty  to  pay  arises,  and  should  state  / 
either  a  legal  liability  or  an  express  agreement,  though  not  S 
a  promise,  to  pay  the  debt.     But  on  specialties  or  on  records, 
the  action  is  supported  by  the  specialty  or  the  record  itself.^  ^ 
Profert  (proffer)  of  the  specialty  sued  on  should  always  be 
rnaoe,  or  its  omission  excused.^ 

Th-e  controlling  feature  of  this  action  which  the  student        ^ 
should  bear  in  mind  is  that  it  lies  for  the  omission  of  a  duty       I J 
in  not  paying  a  definite  sum  of  money,  rather  than  for  the 
violation  of  a  contract  to  so  pay.     The  characteristics  of  this 
and  of  the  succeeding  forms  of  actions  can  be  studied  at  length 
in  Selwyn's  treatise  on  the  law  of  "  Nisi  Prius." 

Detinue. 

This  action,  originally  identical  with  debt,  slowly  branched 
off  from  it.  The  first  formula  in  debt  alleges  that  the 
defendant  owes  the  plaintiff  so  many  marks  "  whereof  he 
unjustly  deforces  him,"  as  if  the  plaintiff  were  suing  to 
recover  certain  specific  coins.  Shortly  after  Glanvill's  time, 
the  deforces  is  dropped  and  the  formula  becomes  "  which  he 
owes  (debet)  and  unjustly  detains  (detinet).''^  If,  however, 
either  creditor  or  debtor  were  dead,  then  the  owes  was  omitted 
and  the  defendant  was  charged  as  detaining  only  (debt  in  the 
detinet).     Here   detinue  began  to  make  its  appearance.     If 

1  The  formal  statement  of  the  plain-  3  Profert  will  be  explained  hereafter 
tiff's  demand,  to  be  described  hereafter,    under  the  rule  of  pleading  especially 

2  Chit.  PI.  104.  relating  to  it. 


56  COMMON-LAW  PLEADING. 

one  claims  a  particular  object,  one  must  never  say  debet,  but 
oii^^injuste  detinet.     The  idea  of  an  obligation  in  connection 

'  with  a  contract  is  beginning  to  dawn,  and  debt  in  the  debet 
is  henceforth  developed  in  that  direction,  while  debt  in  the 
detinet,  or  detinue,  remains  a  proprietary  action.^  It,  how- 
ever, never  lost  the  marks  of  its  origin.  It  could  be  joined 
with  debt,  although  both  the  pleas  and  the  judgments  in  the 
two  actions  became  different.  So  also  the  defendant  could 
always  wage  his  law  in  detinue  as  in  debt  on  simple  contract. 
Originally  detinue  did  not  lie  in  a  case  of  wrongful  taking.^ 
Indeed,  it  is  said  that  it  could  only  be  maintained  by  a  bailor 
against  a  bailee  or  his  representatives,  and  that  if  the  bail- 
ment were  traversed  it  had  to  be  proved.^  Gradually  the  gist 
of  the  action  becomes  the  wrongful  detainer  of  the  chattel 
against  the  demand  of  the  true  owner  for  its  delivery,  and  the 
allegation  of  bailment  is  not  allowed  to  be  traversed.^  Fin- 
ally, it  comes  to  be  grouped  by  some  writers  among  tort  ac- 
tions, notwithstanding  the  manifest  traces  of  its  origin. 
\  Detinue  ^  is  the  only  remedy  by  suit  at  law  for  the  recovery 
pi  a  specific  chattel  in  specie,  unless  in  those  cases  where  re- 

/plevin    lies.      In   trespass,  trover,   or   assumpsit    (forms   of 

/  actions  which  will  be  presently  explained),  damages  only 
can  be  recovered,^  and  in  fact  even  in  detinue  an  obstinate 
defendant  can  not  be  forced  to  give  up  the  chattel  itself,  for 
the  judgment  is  in  the  alternative,  i.e.,  for  the  return  of  the 
chattels  claimed,  or  for  their  value,  with  damages  for  their 

;  detention,  and  costs. 

/  This  action  could  not  be  maintained  for  real  property,  and 
tne  goods  or  chattels  for  which  it  is  brought  must  be  distin- 
guishable from  others  by  some  certain  means.  Thus  it  lies 
for  a  horse,  a  cow,  or  money  in  a  bag ;  but  for  money  or  grain 
not  in  a  bag  or  chest,  or  otherwise  identified,  it  does  not  lie. 
Charters  and  title-deeds  and  any  other  specific  chattel  in  which 
the  plaintiff  has  the  right  of  property  may  be  recovered  by  it.^ 


1  P.  &  M.  Hist.  IL  171,  172.  6  Chit.  PI.  110-114. 

2  Bl.  Com.  in.  151  *.  6  Ibid.  110. 
8  P.  &  M.  Hist.  IL  174.  1  Ibid.  111. 
*  Gledstane  v.  Hewitt,  1  Cromp.  &  J.  565. 


OF   FORMS   OF   ACTIONS.  67 

A  person  who  has  a  right  of  property  in  the  goods,  and  also 
the  right  of  immediate  possession,  may  support  this  action, 
although  he  has  never  had  the  actual  possession.  But  if  the 
plaintiff 's  interest  be  only  in  reversion,  and  he  have  not  the 
right  of  immediate  possession,  he  cannot  sustain  the  action. 
One  who  has  only  a  special  property,  as  a  bailee,  may  also 
support  "the  action  where^  he  delivered  the  goods  to  the 
defendant  or  where  they  were  taken  out  of  his  custody.     / 

Detinue  lies  wherever  a  specific  chattel  is  unlawfully  with-  T) 
held  by  the  wrong-doer,  whether  it  were  originally  taken  law-/  ' 
fully  or  unlawfully .     It  cannot  be  supported  against  a  person 
who  never  had  possession  of  the  goods,  nor  does  it  lie  against    .^^ 
a  bailee  if,  before  demand,  he  loses  them.     If_the  defendant 
claim  that  the  goods  were  pledged  to  him  as  security  for  a 
loan  still  unpaid,  or  if  he  assert  a  lien  of  any  kind  on  the 
goods,  he  must  plead  the  same  specially.  . 

The  declaration  should  contain  a  statement  of  the  plain- 
tiff's right  to  the  goods  in  question,  describing  them  with       ^ 
such  certainty  as  to  identify  them,  and  should  aver  that  they     .^ 
are  in  the  defendant's  possession;   that  the   defendant   ac- 
quired such  possession  by  finding  the  said  goods,  or  by  their 
bailment  to  him ;  that  he  holds  such  possession  subject  to  the    1  Jj 
plaintiff's  right  to  have  the  same  upon  demand,  and  that  such 
demand  has  been  made  and  refused.^    The  value  of  the  goods 
should  be  stated. 

Covenant. 

Glanvill  does  not  mention  the  writ  of  covenant,  but  an  in- 
stance of  its  use  appears  in  the  earliest  extant  plea  roll  (1194), 
and  before  the  end  of  the  reign  of  Henry  III.  it  has  become 
a  popular  writ.  Commerce  is  increasing,  and  its  wants  have 
occasioned  the  practice  of  letting  land  for  terms  of  years. 
The  termor  is  protected  by  the  writ  of  covenant,  and  for 
years  this  is  his  only  protection. 

Before  the  end  of  the  reign  of  Edward  I.,  it  is  established 

1  Kettle  V.  Bromsall,  Willes'  Rep.  seems  to  require  a  demand  on  the  plain- 
120.  Even  in  cases  of  unlawful  taking,  tiff's  part  to  complete  his  right  of 
the  form  of  the  declaration  in  detinue    action. 


58  COMMON-LAW  PLEADING. 

law  that  the  only  conventio  (covenant)  that  can  be  enforced  by 
action  is  one  that  is  expressed  in  a  written  document  sealed 
by  the  party  to  be  charged  therewith.  Thenceforward  the 
term  "covenant"  denotes  a  sealed  document.  This  is  an- 
other instance  of  the  moulding  of  substantive  law  by  pro- 
cedure. The  man  who  relies  upon  a  covenant  must  produce 
in  evidence  a  deed.  Thenceforward  the  sealing  and  delivery 
of  a  piece  of  parchment  "  has  an  operative  force  of  its  own 
which  intentions  expressed,  never  so  plainly,  in  other  ways 
have  not.  This  sealing  and  delivering  of  the  parchment  is 
the  contractual  act.  Further,  what  is  done  by  deed  can  only 
be  undone  by  deed."  ^ 

Covenant  was  first  employed  for  the  purpose  of  conveying 
land  by  way  of  fine,  and  many  such  actions  were  brought 
simply  that  they  might  be  compromised.  Family  settlements 
were  also  made  with  its  aid,  the  settler  taking  a  covenant  for 
re-feoffment  from  his  feoffee.  But,  as  has  been  said,  its 
principal  use  came  to  be  the  protection  of  a  termor,  who  was 
ousted  from  his  term  by  an  unscrupulous  landlord.  This  will 
be  explained  more  fully  when  we  come  to  speak  of  the  action 
of  ejectment. 

One  limitation  upon  the  functions  of  the  action  of  covenant- 
broken  ( conventiononem  fractam)  soon  becomes  apparent ; 
it  can  not  be  employed  for  the  recovery  of  a  debt,  even  though 
the  existence  of  the  debt  is  attested  by  a  sealed  instrument. 
A  debt  can  not  have  its  origin  in  a  covenant,  but  must  arise 
from  some  transaction,  as  a  sale  or  a  loan. 

Covenant  2  is  the  only  remedy  for  the  recovery  of  un- 
liquidated damages  for  the  breach  of  a  contract  under  seal. 
It  is  the  proper  remedy  where  an  entire  sum  is  by  deed 
stipulated  to  be  paid  by  instalments  and  the  whole  is  not 
due,  nor  the  payment  secured  by  a  penalty.  It  is  also  the 
proper  remedy  upon  all  collateral  agreements  under  seal,  in 
order  to  recover  damages  to  compensate  for  the  breach  of  the 
agreement.3  Where  an  agreement  has  been  sealed  by  only 
one  party  thereto,  covenant  may  be  maintained  against  him 

1  P.  &  M.  Hist.  IL  218.  3  Min.  Inst.  IV.  460. 

2  Chit.  PI.  105-110. 


OP   FORMS   OF   ACTIONS.  69 

for  its  breach,  although  only  assu7n2}sit  could  be  sustained 
against  the  other  party  for  a  breach  by  him.  The  action  may 
be  maintained  on  a  covenant  relating  to  some  fact  in  the 
past,  or  the  present,  or  for  the  performance  of  something  in 
the  future. 

Covenant  is  the  usual  remedy  on  leases  at  the  suit  of  the 
lessee  against  the  lessor  for  the  breach  of  a  covenant  for  quiet 
enjoyment,  etc.,  and  by  the  lessor  against  the  lessee  for  non- 
payment of  rent,  not  repairing,  etc, ;  and  covenant  appears  to 
be  generally  a  concurrent  remedy  with  debt,  for  the  recovery 
of  any  money  demand,  when  there  is  an  express  or  an  implied 
contract. contaiiied  in._lhe  deed.  Where  the  demand  is  for 
rent,  or  any  other  liquidated  sum,  the  lessor  has  an  election 
to  proceed  in  debt  or  covenant  against  the  lessee. 

At  common  law  no  person  could  support  an  action  of 
covenant,  or  take  advantage  of  any  covenant  or  condition, 
unless  he  were  a  party  or  privy  thereto,  and  of  course  no 
grantee  or  assignee  of  any  reversion  or  rent  could  take  such 
advantage.  To  remedy  this  defect  the  statute  of  32  Hen.  VIII. 
c.  34,  gives  the  assignee  of  a  reversion  the  same  remedies 
against  the  lessee,  or  his  representatives  or  assignees,  upon 
covenants  running  with  the  land,  as  the  lessor,  or  his  heirs, 
had  at  common  law ;  the  assignee,  on  the  other  hand,  is  made 
liable  for  the  breach  of  a  covenant  running  with  the  land  to 
the  same  extent  that  the  lessor  was  at  common  law.  As 
to  the  cases  in  which  debt  or  covenant  should  be  brought 
upon  such  covenants  running  with  the  land,  and  also  as  to 
the  local  or  transitory  nature  of  such  actions,  the  student  is 
referred  to  a  careful  review  of  the  subject  in  Gould's  Pleading, 
pp.  111-116. 

The  declaration  in  covenant  must  state  that  the  contract    ■ ' 
was  under  seal,  and  should  usually  make  profert  thereof  or 
excuse   its    omission.      If   performance    of    a  condition  pre- ,  n 
cedent  be  required  to  establish  the  plaintiff's  right  of  action,  f^r!^ 
such'  performance  must  be  averred.     Only  so  much  of  the 
covenant  a,s  is  essential  to  the  cause  of  action  should  be  set 
forth,  and  that  not  in  full,  but  according  to  its  legal  effect ;    \^ 
yet  it  is  usual  to  declare,  against  this  well-settled  rule,  in 


60  COMMON-LAW  PLEADING. 

.Hhe  very  words  of  the  deed.  The  breach  may  be  alleged  in 
[  the  negative  of  the  words  of  the  covenant,  or  according  to  the 
\  legal  effect.  Several  breaches  may  be  assigned  at  common 
^  law.  As  damages  are  the  main  object  of  the  suit,  they 
/  should  be  laid  in  a  sum  sufficiently  large  to  cover  the  real 
V  amount  claimed.^ 

ACCOUNT.2 

The  action  of  account  was  closely  modelled  upon  the  pro- 
prietary writs.  The  defendant  was  called  upon  to  render  to 
the  plaintiff  justly  and  without  delay  a  certain  thing,  to-wit : 
an  account  of  his  receipts  and  disbursements  during  the  time 
he  was  the  plaintiff's  bailiff  and,  as  such,  receiver  of  his  money. 
Even  to-day  we  say  that  a  man  is  under  an  obligation  to  render 
Ian  account.  This  obligation  does  not  rest  upon  contract,  but 
\ipon  a  situation  or  a  relation.  An  administrator,  a  trustee, 
a  guardian  owes  an  account  to  those  who  occupy  a  certain 
relation  with  respect  to  him  as  such  officer.  Accordingly  the 
court  first  ascertained  whether  or  not  the  duty  to  account 
existed,  and  if  it  found  in  the  affirmative,  it  pronounced  an 
interlocutory  judgment,  quod  computet  (let  him  account). 
Then  auditors  were  appointed  who  stated  the  particulars  of 
the  account.  This  action  would  only  lie  where  the  amount 
sought  to  be  recovered  was  uncertain  and  unliquidated. 

It  is  perhaps  worthy  of  note  that  this  was  the  first  action 
in  which  process  of  execution  was  given  against  the  person 
of  the  defendant. 

/  The  action  has  been  superseded,  save  in  a  very  few  of  the 
/CTnited  States,  by  the  equitable  remedy  for  an  accounting. 
Its  further  details  may  be  found  in  the  record  and  proceedings 
in  the  case  of  Godfrey  v.  Saunders,  3  Wils.  73,  and  also  in 
Selwyn's  work  before  referred  to. 

Scire  Facias.^ 

As  the  writ  of  scire  facias  is  not  an  original  but  a  judicial 
writ,  it  may  seem  irregular  to  class  it  among  the  formed 
actions.      Of  it  Lord  Coke  says :   "  This  is  a  judiciall  writ, 

1  Chit.  PI.  110.  "  Foster  on  Scire  Facias,  passim. 

2  Selw.  N.  P.  I.  1-7. 


OF   FORMS   OF   ACTIONS.  61 

and  properly  lyeth  after  the  yeare  and  day  after  judgment. 
...  So  as  by  the  writ  it  appeareth,  that  the  defendant  is  to 
be  warned  to  plead  any  matter  in  barre  of  execution  ;  and 
therefore  albeit  it  be  a  judiciall  writ,  yet  because  the  de- 
fendant may  thereupon  pleade  this  scire  facias  is  accounted 
in  law  to  bee  in  nature  of  an  action."  ^  It  derived  its  name 
from  the  following  necessary  words  in  the  writ :  "  Quod  scire 
facias  prcefat.  T.  (the  defendant)  quod  sit  corarti^  etc.,  (that 
you  the  Sheriff  sliall  cause  the  aforesaid  T.  to  know  that  he 
must  be  before  us,  etc.)." 

/Scire  Facias  is  an  action  which  is  always  founded  upon  a 
record,  and  is  the  proper  means  of  enforcing  compliance  with 
all  obligations  ofrecord  upon  which  an  execution  can  not 
immediately  issue,  whether  by  reason  of  lapse  of  time,  change 
of  parties,  or  their  own  inherent  nature.  If  the  obligation 
imposed  by  the  record  be  that  of  paying  a  liquidated  sum  of 
money,  either  debt  or  scire  facias  may  be  used.  But  if  the 
obligation  be  of  a  different  nature,  scire  facias  is  the  only 
mode  of  proceeding.  Scire  facias  and  debt  are  the  only  actions 
which  can  be  grounded  upon  a  record.^ 

In  real  actions,  and  on  a  writ  of  annuity,  the  writ  of  scire 
facias  lay  at  common  law  if  the  plaintiff  did  not  take  out  an 
execution  within  a  year  and  a  day.  In  personal  actions,  be- 
fore the  Statute  of  Westminster  2d  (13  Edw.  I.  St.  1,  c.  45, 
A.  D.  1285),  if  the  plaintiff  did  not  have  execution  within  a 
year  and  a  day,  he  was  driven  to  a  new  action  (debt)  upon 
his  judgment ;  by  this  statute  the  process  upon  scire  facias  was 
simplified  and  shortened,  and  its  aid  was  extended  to  personal 
actions,  and,  while  the  plaintiff  might  still  sue  upon  his  judg- 
ment as  before,  yet  he  might  have  execution  after  scire  facias 
upon  his  existing  judgment. 

In  all  cases  where  a  new  person,  who  was  not  a  party  to  a 
judgment  or  recognizance,  derives  a  benefit  by,  or  becomes 
chargeable  to,  the  execution,  there  must  be  a  scire  facias  to 
make  him  a  party  to  the  judgment.  Thus,  where  a  judgment 
has  been  obtained  by  or  against  an  unmarried  woman  who 
afterwards  marries,  and  it  is  sought  by  the  husband  to  have 

1  Co.  Litt.  290  b.  2  Evans'  PI.  84. 


62  COMMON-LAW  PLEADING. 

execution  of  the  judgment,  or  by  the  wife's  creditors  to  have 
execution  against  him  for  the  judgment  recovered  against  the 
wife  whilst  unmarried,  a  scire  facias  is  necessary.  So  upon 
the  death  of  a  plaintiff  pending  a  suit  in  a  case  where  the 
cause  of  action  survived,  his  personal  representatives  could 
through  this  writ  be  admitted  to  prosecute  the  action  in 
his  stead.  And  upon  the  death  of  a  defendant  in  such  a 
case,  his  personal  and,  when  proper,  his  real  representatives 
(including  his  terre-tenants,  i.  e.,  those  occupying  his  lands) 
could,  by  means  of  this  writ,  be  substituted  in  his  stead.  The 
death  of  a  sole  plaintiff  or  defendant  at  any  time  before  final 
judgment  was,  at  common  law,  an  abatement  of  the  suit ;  but 
by  the  statute  of  17  Car.  II.  c.  8,  the  benefit  of  the  writ  was 
extended  to  such  cases.  There  were  other  uses  to  which  this 
writ  was  applied,  to-wit :  in  cases  of  bankruptcy  or  insolvency 
to  enable  the  assignees  to  make  themselves  parties  to  suits  by 
or  against  the  bankrupt  after  judgment ;  and  in  case  of  judg- 
ment against  an  administrator  or  executor  of  assets  quando 
acciderint  (when  they  shall  have  come  into  possession),  to 
reach  subsequent  assets  on  proof  of  their  receipt  by  such 
officer.  In  England,  when  a  bill  of  exceptions  had  been 
sealed,  it  lay  to  compel  the  judge  who  sealed  it,  or,  in  case 
of  his  death,  his  personal  representatives,  to  acknowledge  or 
deny  his  seal.  If  the  judge  died  before  sealing,  there  was  no 
remedy  on  the  bill.  Formerly,  the  plaintiff  in  error  in  the 
Court  of  King's  Bench  had  to  give  notice  by  scire  facias  to  the 
defendant  to  appear  and  plead.  There  were  other  curious 
uses  of  this  writ  which  we  have  not  space  to  mention  here ; 
indeed,  so  many  and  important  were  the  functions  of  scire 
facias,  that  extensive  treatises  ^  have  been  written  upon 
them.  It  is  proper  to  add  that  in  certain  cases  this  writ 
was  the  commencement  of  an  original  action,  and  therefore 
the  writ  itseH  was  here  called  an  original  writ.  Thus  in  Eng- 
land it  was  used  to  repeal  letters-patent ;  to  repeal  the  grant 
of  a  franchise,  where  such  grant  is  injurious  to  another,  as 
also  in  the  case  of  the  abuse  of  a  franchise  by  negligence ; 
and  to  repeal  a  patent  granting  an  office,  where  the  officer 

1  Foster  on  Scire  Facias.    Kelly  on  Scire  Facias. 


OF   FORMS   OP   ACTIONS.  63 

neglects  his  duties.  As  in  the  nature  of  an  original  action,  it 
lies  to  have  execution  of  a  forfeited  recognizance ;  upon  rec- 
ognizance of  bail  in  error ;  against  pledges  in  replevin,  and 
against  the  sheriff  for  taking  insufficient  pledges ;  on  bond  to 
the  Crown  for  the  payment  of  excise  or  other  duties,  or  for 
the  faithful  discharge  of  an  office;  and  on  inquest  of  office 
(inquisitions)  to  recover  simple  contract  debts  found  due  to 
the  Crown,  since  the  Crown,  although  it  may  sue  a  private 
subject  in  debt  in  the  common-law  courts,  can  nevertheless 
proceed  by  inquest-of-office  in  a  manner  more  consistent  with 
its  dignity  and  with  the  royal  prerogative. 

Having  described  as  briefly  as  was  possible,  in  view  of  the 
importance  of  the  subject,  the  formed  actions  on  contract,  we 
come  now  to  consider  the 

Formed  Actions  ex  Delicto,  or  in  Tort. 

Tort  actions  are  for  the  redress  of  wrongs  unconnected 
with  contract.  They  are  for  the  violation  of  natural,  as  con- 
trasted with  acquired,  rights.  Natural  rights  are  those  which 
we  all  possess  to  security  of  person,  reputation,  and  estate. 
"  The  purpose  of  the  law  of  torts  is  to  secure  a  man  indem- 
nity against  certain  forms  of  harm  to  person,  reputation,  or 
estate  at  the  hands  of  his  neighbors."  ^  No  more  striking 
contrast  exists  in  the  history  of  the  Anglo-Saxon  people  than 
that  afforded  by  a  comparison  of  the  law  of  torts  of  to-day 
with  that  which  existed  only  one  hundred  years  ago.  Of  the 
formed  actions  in  tort  there  were  only  two,  —  Trespass  and 
Replevin. 

Trespass. 

The  action  of  trespass  cannot  be  understood  unless  we 
revert  to  the  primitive  times  when  self-help  was  at  once 
the  measure  of  responsibility  and  the  means  of  redress.  In 
the  most  archaic  German  society,  before  the  organization 
of  courts  and  of  a  civil  government,  each  individual  was,  to 
the  extent  of  his  power,  the  protector  of  his  own  rights  and 
the  avenger  of  his  wrongs.  With  respect  to  both  the  civil 
remedy  of  distress  and  private  vengeance  for  injuries,  this 

1  Holmes'  C  L.  144. 


64  COMMON-LAW  PLEADING. 

was  a  period  of  summary  aciion  by  the  individual.  German 
society  was  organized  on  the  basis  of  the  peace,  i.  e.,  a  par- 
ticular protection  or  security  under  which  certain  persons 
and  places  stood ;  this  particular  and,  as  it  were,  local  peace, 
since  it  was  protected  by  some  local  lord,  afterwards  became 
co-extensive  with  the  realm  under  the  name  of  the  king's 
peace.  Every  violation  of  this  primitive  peace  was  a  wrong. 
Upon  the  gradual  growth  of  society,  and  the  development  of 
courts  for  the  protection  of  the  individual  from  wrongs,  this 
private  vengeance  was  at  first  retained;  but  it  was  not 
allowed  unless  clearly  used  by  the  individual  as  an  instru- 
ment of  law.  It  became  a  fundamental  rule  of  German  law 
that  vengeance  must  be  authorized  by  previous  permission 
of  the  court ;  or,  if  it  preceded  that  permission,  it  must  after- 
wards be  justified  to  the  court. 

As  a  survival  of  the  primitive  right  of  private  and  unre- 
strained' vengeance,  there  lingered  the  feud,  or,  as  it  was 
commonly  called,  the  blood  feud,  which  obliged  the  kindred- 
of  a  dead  man  to  avenge  his  blood.  This  was  outside  of  the 
law,  and  in  bold  opposition  to  it ;  but  it  rested  upon  a  founda- 
tion so  strong  in  human  nature  that  it  held  its  position,  even 
in  England,  long  after  the  Conquest,  although  many  attempts 
were  made  to  control  it. 

The  great  step  towards  the  limitation  of  vengeance  and  of 
these  blood  feuds  was  the  extension  of  the  system  of  composi- 
tions. Vengeance  and  feud  could  be  bought  off.  The  wrath 
of  the  dead  man's  kindred  could  be  extinguished  with  a  money- 
payment.^  Under  Anglo-Saxon  law,  a  money  value  was  placed 
on  the  life  of  every  free  man,  according  to  his  rank,  and  a 
corresponding  sum  on  every  wound  that  could  be  inflicted  on 
his  person,  and  for  nearly  every  injury  that  could  be  done  to 
his  civil  rights,  honor,  or  peace,  —  the  same  being  aggravated 
according  to  adventitious  circumstances.^  If  neither  the  lord 
nor  the  kinsman  of  the  offender  could  pay  this  compensation, 
then  only  might  vengeance  be  taken. 

When  an  offender  broke  the  peace  he  became  by  that  very 

1  Anglo-Saxon  Law,  262-305.  ^  Kemble's    Anglo-Saxons,    L    197, 

276,  277. 


OP   FORMS  OP   ACTIONS.  65 

act  "  peaceless  ; "  he  was  outside  the  pale  of  law  and  protec- 
tion ;  vengeance  against  him  was  not  regarded  as  a  crime, 
and  his  life  was  forfeit.  By  bringing  the  charge  before  the 
court,  the  permission  of  the  community  enlarged  the  right 
of  vengeance  by  binding  all  members  of  that  community  to 
assume  a  state  of  warfare  against  the  peace-breaker ;  he 
became  an  outlaw  on  whose  head  a  price  was  set,  a  "  lupinum 
caput,"  a  wolf,  glad  to  escape  the  country,  and  spend  his  life 
as  a  wretch ;  and  when  excommunication  from  the  Church 
was  added,  his  cup  was  full. 

Although  the  payment  of  composition,  or  "blood-money," 
was  at  first  the  result  of  private  agreement,  yet  later  the 
state  asserted  the  right  to  avert  vengeance  from  him  who 
had  paid  or  offered  to  pay  the  fixed  sum.  Of  this  sum  a 
part  went  to  the  state  as  "  peace  money "  (ivite),  and  an- 
other to  the  individual  injured  as  damages  (hof).  We  must 
not,  however,  omit  to  note  carefully  that  certain  very  grave 
crimes  did  not  come  within  this  system  of  composition. 
They  were  unemendable,  and  could  not  be  bought  off.  Such 
were  house-breaking,  arson,  open  theft,  certain  forms  of 
aggravated  homicide,  and  treason  against  one's  lord.  These 
were  punished  with  death,  sometimes  preceded  by  mutilation 
and  other  torture. 

We  cannot  stop  here  to  discuss  the  development  of  the 
true  idea  of  criminal  law,  —  of  the  offence  against  the  state 
and  the  infliction  of  punishment  as  such  for  the  offence. 
"  The  difference  between  an  offence  against  the  state  and  an 
offence  merely  against  the  individual  that  suffers,  although 
very  clear  and  important,  is  not  apprehended  at  an  early 
stage  in  the  history  of  law.  Even  after  it  is  recognized  a 
long  period  generally  elapses  before  a  proper  distribution  of 
offences  is  made.  Thus  theft  in  the  early  Roman  law  was 
treated  purely  as  a  civil  wrong.  ,  .  .  The  true  distinction 
between  crime  and  civil  wrong  is  to  be  found  in  the  remedy 
that  is  applicable.  The  aim  of  the  Civil  Law  is  to  give  re- 
dress to  a  sufferer  in  the  form  either  of  restitution  or  of  com- 
pensation.    The  aim  of  the  Criminal  Law  is  punishment."  ^ 

1  Hunter's  Eoman  Law,  1063,  1064. 
5 


66  COMMON-LAW  PLEADING. 

In  England,  by  the  time  we  meet  with  our  first  judicial 
records  {temp.  Ric.  I.)  this  differentiation  of  criminal  law  has 
begun.  There  are  a  few  crimes  defined  in  broad  terms 
which  place  the  life  and  limb  of  the  offender  at  the  king's 
mercy.  The  other  crimes  are  punished  chiefly  by  discretionary 
money  penalties  which  have  taken  the  place  of  the  old  pre- 
appointed wites^  while  the  old  pre-appointed  hot  has  given  way 
to  "  damages  "  assessed  by  a  tribunal.  Outlawry  is  no  longer 
a  punishment ;  it  is  mere  process  compelling  the  attendance  of 
the  accused.^  At  about  the  same  time  we  meet  with  a  com- 
munal accusation  (what  we  should  to-day  call  an  indictment 
or  a  presentment)  against  an  alleged  criminal.  Prior  to  this, 
even  the  gravely  punishable  offences  have  been  looked  at 
from  the  point  of  view  of  the  person  who  has  been  wronged, 
and  the  wrong-doer  has  been  prosecuted  on  his  complaint.  A 
felony,  .according  to  the  old  law,  is  a  crime  which  can  be 
prosecuted  by  an  appeal,  i.  e.,  by  an  accusation  in  which  the 
accuser  must,  as  a  general  rule,  offer  battle.  The  king  him- 
self cannot  protect  the  man-slayer  from  the  suit  of  the  dead 
man's  kin.  He  cannot  pardon  a  man  appealed  of  a  felony, 
for  "  appeals  of  all  kinds  are  the  suit  not  of  the  king  but 
of  the  party  injured; "^  this  right  of  private  prosecution 
remained  until  it  was  abolished  by  act  of  Parliament  in  1819. 

The  woundings  and  house-burnings  of  an  earlier  day  be- 
came the  appeals  of  mayhem  and  of  arson.  The  appeals  de 
pace  et  plagis  (of  peace  broken  and  of  blows  given)  became,  or 
ratlier  were  in  substance,  the  action  of  trespass  which  is  still 
familiar  to  lawyers. ^ 

The  writs  of  trespass  are  closely  connected  with  these 
appeals  for  felony.  The  action  of  trespass  is,  it  is  said,  an 
attenuated  appeal.  The  charge  of  felony  is  omitted;  no  bat- 
tle is  offered ;  but  the  basis  of  the  action  is  a  wrong  done  to 
the  plaintiff  in  his  body,  his  goods,  or  his  lands,  by  force  and 
arms  and  against  the  king's  peace.  We  can  now  understand 
the  quasi-criminal  character  of  this  action  and  the  jurisdic- 

1  P.  &  M.  Hist.  II.  457.  3  Holmes'  C.  L.  2,  3. 

2  Bl.  Com.  IV.  312-317*  398*.     See 
also  Ashford  v.  Thornton,  1 B.  &  Aid.  405. 


OF  FORMS   OF  ACTIONS.  67 

tion  asserted  over  it  by  the  King's  Bench,  which  court  alone 
held  Pleas  of  the  Crown,  i.  e.,  criminal  causes. 

The  early  English  appeals  for  personal  violence  seem  to 
have  been  confined  to  intentional  wrongs.  It  was  only  at  a 
late  day,  and  after  argument,  that  trespass  was  extended  so  as 
to  embrace  harms  which  were  foreseen,  but  which  were  not 
the  intended  consequence  of  the  defendant's  act.  Thence 
again  it  extended  to  unforeseen  injuries.^ 

This  action  of  trespass  became  common  near  the  end  of  the 
reign  of  Henry  III,  It  was  a  flexible  action  ;  the  defendant 
was  called  upon  to  say  why  with  force  and  arms  and  against 
the  king's  peace  he  did  some  wrongful  act ;  he  was  threatened 
with  a  semi-criminal  action  ;  the  plaintiff  was  using  a  weapon 
which  had  in  the  past  been  reserved  for  felons,  and  was  urging 
against  the  defendant  the  terrible  process  of  outlawry. 

In  the  course  of  time  the  cases  of  trespass  grouped  them- 
selves into  three  great  divisions.  Violence  was  done  to  the 
goods  of  the  plaintiff ;  they  were  taken  and  carried  away ; 
this  form  became  trespass  c?e  bonis  asportatis  (for  goods 
carried  away).  Violence  was  done  to  the  plaintiff's  land  ; 
it  was  forcibly  entered  upon  and  trees  were  destroyed  or 
other  damage  done  ;  this  form  became  trespass  de  clauso 
fracto,  or  quare  clausum  f regit  (for  a  close  broken,  or  where- 
fore he  broke  the  close).  Finally  violence  was  done  to  the 
plaintiff's  person ;  he  was  assaulted  and  beaten  ;  this  form 
became  trespass  for  assault  and  battery  (the  old  appeal  de 
pace  et  plagis). 

As  has  been  said,  the  process  against  a  contumacious  de- 
fendant aimed  at  his  outlawry.  If  convicted,  he  was  im- 
prisoned until  he  made  fine  with  the  king;  in  addition  he 
was  compelled  to  pay  damages  to  the  plaintiff. 

In  course  of  time  the  criminal  element  becomes  weakened. 
There  will  be  a  trespass  with  force  and  arms  if  a  man's  body, 
goods,  or  lands  have  been  even  so  much  as  unlawfully  touched. 
The  fine  due  the  king  will  become  obsolete,  and  only  the  civil 
and  private  aspect  of  the  action  will  remain. 

One  other  historical  incident  of  the  action  must,  however, 

1  Holmes'  C.  L.  3,  4. 


68  COMMON-LAW   PLEADING. 

be  mentioned,  for  it  is  the  origin  of  the  anomalous  practice 
still  in  force  to-day  of  giving  punitive  damages  in  what  is 
theoretically  a  merely  compensatory  suit.  It  seems  that  the 
old  law  did  not  place  much  reliance  in  public  instrumentali- 
ties for  the  punishment  of  wrong-doers.  It  was  not  thought 
that  royal  officials  or  people  in  general  would  be  active  in 
bringing  malefactors  to  justice.  "  More  was  to  be  hoped 
from  the  man  who  had  suffered.  He  would  move  if  they 
made  it  worth  his  while.  And  so  in  a  characteristically 
English  fashion  punishment  was  to  be  inflicted  in  the  course 
of  civil  actions  ;  it  took  the  form  of  many  fold  reparation,  of 
penal  and  exemplary  damages."  ^ 

Coming  now  to  consider  the  fully  developed  action  of  tres- 
pass,2  we  have  to  remark  that  its  most  general  characteristic 
is  that  it  lies  only  for  injuries  committed  with  actual  or  im- 
plied force,  or,,  as  the  Latin  phrase  is,  vijt^  armis  ^  (with  force 
and  arms). 

It  is  not  easy  to  define  that  force  which  the  law  implies ; 
\but  it  is  sufficient  to  say  that  the  law  will  imply  violence, 
(though  none  was  actually  used,  when  the  injury  is  of  a  direct 
and  immediate  kind,  and  committed  against  the  person,  or 
tangible  and  corporeal  property  of  the  plaintiff,  which  is  in 
his  possession.^  The  old  words  contra  pacem  (against  the 
peace)  remain,  and  in  some  cases  are  material  to  the  founda- 
tion of  the  action,  for  an  action  of  trespass  to  land  not  within 
the  king's  dominion  could  not  be  sustained.  In  this  action 
the  intention  of  the  wrong-doer,  be  it  never  so  innocent,  is 
immaterial. 

The  action  can  not  be  maintained  where  the  wrong  com- 
plained of  was  a  mere  non-feasance;  or  where  the  matter 
affected  was  not  tangible,  as  reputation  or  health,  and  conse- 
quently not  capable  of  immediate  injury  by  force ;  or  where 
the  right  invaded  is  incorporeal,  as  an  incorporeal  heredita- 
ment of  any  sort;  or  where  the  plaintiff's  interest  is  in 
reversion  and  not  in  possession  ;  or  where  the  injury  was 
not  immediate   but   consequential ;   or   where  the   act   com- 

1  P.  &  M.  Hist.  n.  52L  8  Co.  Litt.  161  b. 

2  Chit.  PI.  151-172.  4  Steph.  PI.  47. 


OP   FORMS   OF   ACTIONS.  69 

plained  of  was  not  the  direct  act  of  the  defendant,  but  of  his 
servant  in  the  course  of  his  employment ;  or  generally  where 
such  act  was  not  unlawful  in  its  inception.  In  such  cases 
force  does  not  actually  exist  and  can  not  be  implied.^ 

Trespass  may  be  divided  into  two  large  classes :  injuries 
committed  under  color  of  legal  proceedings,^  and  injuries  not ._. 
so  committed. 

In  general  no  action  whatever  can  be  supported  for  any 
act,  however  erroneous  or  even  malicious,  of  a  judicial  officer 
acting  within  the  scope  of  his  jurisdiction.^  But  when  the 
court  has  no  jurisdiction  over  the  subject-matter,  trespass  is 
the  proper  form  of  action  against  all  the  parties  for  any  act 
which  comes  properly  within  its  scope.  When  a  court  has 
jurisdiction,  but  the  proceeding  is  defective  because  it  is  irreg- 
ular or  void,  trespass  against  the  attorney  and  the  plaintiff  is 
generally  the  proper  form  of  action  ;  and  where  a  judgment 
has  been  set  aside  for  irregularity,  this  is  the  appropriate 
remedy  for  any  act  done  under  it.  When  the  process  has 
been  misapplied,  as  where  A  or  his  goods  are  taken  upon 
process  against  B,  trespass  is  generally  the  only  remedy. 
When  the  process  of  a  court  has  been  abused,  trespass 
against  the  sheriff  and  his  officer  committing  the  abuse  is 
the  proper  action,  if  the  act  of  such  officers  was  in  the  first 
instance  illegal  and  an  immediate  injury  to  the  body  or  to 
personal  or  real  property.  So  also  where  the  conduct  of  the 
officer  was  in  the  first  instance  lawful,  but  he  abused  his 
authority,  and  thereby  became  a  trespasser  ah  initio  (from 
the  outset).  When  a  ministerial  officer  proceeds  without  war- 
rant, on  the  information  of  another,  trespass  is  the  proper  form 
of  action  against  the  informer  if  the  information  prove  to  be 
false.  But  no  person  who  acts  upon  a  regular  writ  or  warrant  g 
can  be  liable  in  trespass,  however  malicious  his  conduct.  ' 

When  we  consider  injuries  not  committed  under  color  of 
legal  proceedings,*  and  where  consequently  the  mere  act  of 
injury  is  to  be  dealt  with,  we  find  that  one  may  himself  injure 
another  in  person  or  with  respect  to  personal  or  real  property. 

1  Chit.  PI.  150.  8  Bradley  v.  Fisher,  13  Wall.  335. 

2  Ibid.  167-171.  *  Chit.  V\.  151-167. 


70  COMMON-LAW   PLEADING. 

He  may  also  injure  through  persons  or  things  for  whom  he  is 
responsible. 

Trespass  is  the  only  remedy  for  a  menace  to  the  plaintiff, 
attended  with  consequent  damages,  and  for  an  illegal  assault, 
battery,  or  imprisonment,  when  not  under  color  of  process. 
So  it  lies  for  an  injury  occasioned  by  force  to  the  relative 
rights,  as  by  menacing  tenants  or  servants,  or  by  beating  or 
imprisoning  a  wife,  child,  or  servant,  whereby  the  landlord, 
husband,  father,  or  master  has  sustained  a  loss  ;- itJies_for_the 
seduction  or  debauching  of  a  wife,  or  servant,  and  in  the  case 
of  a  daughter  debauched  the  most  liberal  meaning  is  given  to 
the  term  service  in  tliis  connection  in  order  to  allow  the  benefit 
of  the  action  to  the  father. 

Trespass  lies  for  taking  or  injuring  all  inanimate  personal 
property,  and  all  domiciled  and  tame  animals,  including  all 
animals  usually  marketable,  as  parrots,  monkeys,  etc.  The 
person  who  has  the  absolute  or  general  property  in  the  thing 
injured  may  support  this  action,  although  he  has  never  had 
the  actual  possession,  or  although  he  has  parted  with  his 
mere  possession  to  a  carrier  or  servant,  it  being  a  rule  of  law 
that  the  general  property  in  personal  chattels  prima  facie  as 
to  all  civil  purposes  draws  to  itself  the  possession.  But  if  the 
general  owner  part  with  his  possession,  and  the  bailee  at  the 
time  of  injury  have  an  exclusive  right  to  use  the  chattel,  there 
the  inference  of  possession  is  rebutted,  and  the  general  owner, 
having  only  an  interest  in  reversion,  cannot  maintain  trespass. 
A  bailee  who  has  an  authority  coupled  with  an  interest,  as  a 
factor  or  consignee  of  goods  in  which  he  has  an  interest  to 
the  extent  of  his  commission,  may  support  trespass  for  any 
injury  done  to  the  goods  during  the  continuation  of  his  in- 
terest, though  he  never  had  actual  possession  of  the  goods. 
So  a  bailee  with  a  mere  naked  authority  coupled  only  with  an 
interest  as  to  remuneration,  as  a  carrier,  pawnee,  etc.,  may 
maintain  this  action  for  any  injury  done  while  he  was  in 
actual  possession  of  the  thing,  but  a  mere  servant  cannot 
maintain  it.  The  finder  of  any  article,  and  even  a  person 
having  an  illegal  possession  of  a  chattel,  may  support  tres- 
pass against  any  person  but  the  real  owner. 


OF   FORMS   OF   ACTIONS.  71 

The  injury  may  be  inflicted  either  by  the  unlawful  taking 
of  the  chattel,  or  by  damaging  it  while  in  the  possession  of 
another.  Tre^naas  is  a  concurrent  remedy  with  trover  for 
most  illegal  takings,  even  in  the  case  of  an  illegal  distress  for 
rent.  It  also  lies  though  there  has  been  no  wrongful  intent, 
as  if  a  sheriff  take  the  goods  of  a  wrong  person.  It  may  be 
supported  against  a  bailee  who  has  only  a  bare  authority,  as 
if  a  servant  take  goods  of  his  master  out  of  his  shop  and  con- 
vert them.  But  trespass  is  not  sustainable  against  a  bailee 
who  has  the  possession  coupled  with  an  interest,  unless  he,^ 
destroy  the  chattel;  nor  agaiiist  a  joint-tenant  or  tenant-in- 
common  for  merely  taking  away  and  holding  the  property 
exclusively  from  his  co-owner,  for  each  has  an  interest  in 
the  whole;  but  if  the  thing  be  destroyed,  then  trespass  lies 
against  the  co-owner  guilty  of  the  destructive  act.  When 
the  taking  is  unlawful,  either  the  general  owner,  or  the  bailee, 
if  answerable  over,  may  support  trespass ;  but  if  the  taking 
were  lawful,  trespass  will  not  lie  for  a  refusal  to  deliver. 
Trespass  can  be  maintained  for  any  immediate  injury  to  ' 
personal  property  occasioned  by  actual  or  implied  force,  • 
as  for  shooting  or  beating  a  dog  or  other  live  animal,  chasing 
sheep,  mixing  water  with  wine,  etc.,  although  in  none  of 
these  cases  is  there  any  taking  away  or  disposing  of  the 
chattel  by  the  wrong-doer.  It  may  also  be  supported  for 
an  injury  done  to  personal  property  whilst  in  the  lawful 
adverse  possession  of  the  wrong-doer,  if  he  has  been  guilty 
of  an  abuse  which  renders  him  a  trespasser  ah  initio,  as 
where  a  horse  which  had  been  distrained  was  worked  by 
the  distrainer. 

Trespass  is  the  proper  remedy  to  recover  damages  for  an  > 
illegal  entry  upon,  or  an  immediate  injury  to,  real  property' 
corporeal  in  the  possession  of  the  plaintiff.  The  real  property- 
must  be  something  tangible  and  fixed,  as  a  house,  an  out-build- 
ing or  land,  or  anything  which  is  covered  by  the  technical 
word  close,  which  signifies  an  interest  in  the  soil,  and  not 
merely  an  inclosure.  Trespass  lies  no  matter  how  temporary 
the  plaintiff's  interest,  and  although  this  interest  be  merely 
in  the  profits  of  the  soil,  if  such  interest  be  to  the  exclusion  of 


72  COMMON-LAW   PLEADING. 

others.  In  England,  the  parson  might  support  trespass  against 
a  person  preaching  in  his  church  without  his  leave.  It  lies 
for  an  injury  to  land  covered  by  water,  but  the  close  must  be 
described  as  so  covered ;  so  it  lies  for  breaking  and  entering 
the  several  fishery  of  the  plaintiff. 

IThe  gist  of  the  action  is  the  injury  to  the  possession  of  real 
estate)  and  unless  at  the  time  the  injury  was  committed  the 
4}laintiff  was  actually  in  possession,  he  cannot  maintain  the 
'action.  The  possession  of  a  servant  is  the  possession  of  his 
master  for  this  purpose.  Any  possession  is  sufficient  against 
a  wrong-doer  or  a  person  who  can  not  make  out  a  title  prima 
facie  conferring  the  right  to  the  possession.  But  there  must 
be  actual  possession,  for  even  the  owner  of  the  freehold  can  not 
maintain  trepass  until  he  has  actually  entered  upon  his  land. 
If  the  plaintiff  was  in  possession  of  the  close  at  the  time  when 
the  injury  was  committed,  it  is  no  objection  to  his  suit  that 
he  gave  up  this  possession  before  bringing  his  action. 

Trespass  for  injury  to  real  property  can  only  be  supported 
when  the  injury  is  immediate  and  was  committed  with  force 
actual  or  implied.  It  lies,  no  matter  how  unintentional  the 
trespass,  and  although  the  locus  in  quo  (place  in  which)  were 
not  inclosed,  or  although  the  door  of  the  house  were  open,  if 
the  entry  was  not  for  a  justifiable  purpose.  Even  shooting  at 
or  killing  or  wounding  game  or  any  animal  on  another's  land, 
without  an  actual  entry,  is  an  entry  in  law,  and  in  such  case 
trespass  will  lie.  If  one  tenant  in  common  forcibly  prevent 
his  co-tenant  from  entering  or  occupying  the  land,  trespass 
may  be  maintained.  Though  the  original  entry  of  a  party  be 
lawful,  yet  by  a  subsequent  abuse  of  an  authority  in  law  to 
enter,  as  to  distrain,  etc.,  such  party  may  become  a  trespasser 
ah  initio. 

A  person  will  be  liable  for  a  trespass  committed  by  his 
command  or  procurement,  or  by  subsequently  assenting  to 
such  act  committed  for  his  benefit.  In  the  case  of  animals, 
if  they  are  of  such  kind  as  to  have  a  natural  propensity  to  do 
the  act  complained  of  (as  is  the  case  with  horses  and  cattle 
with  respect  to  trespasses  on  land,  and  with  notoriouslv  fero- 
cious or  wild  animals,  which  have  not  been  properly  confined, 


OP  FORMS   OP  ACTIONS.  73 

as  to  other  injuries),  trespass  may  be  supported  for  injuries 
inflicted  by  such  animals. 

The  declaration  in  trespass  should  contain  a  concise  state- 
ment of  the  injury  complained  of,  whether  to  the  person  or  to 
personal  or  real  property,  and  should  allege  that  such  injury 
was  committed  vi  et  armis  and  contra  pacem. 

'  ^     '  ■-^'  Replevin. 

Where  goods  had  been  illegally  distrained,  their  owner 
could  at  once  regain  their  possession  by  an  orighial  writ  of 
replevin.  The  student  will  note  at  the  outset  the  peculiar 
characteristic  of  this  action  in  that,  at  the  inception  of  the 
suit,  it  put  the  plaintiff  in  possession  of  the  property  claimed. 
Distress  was  a  very  severe  kind  of  self-help,  as  we  have  seen, 
and  the  king's  courts  were  much  concerned  when  it  was 
abused.  The  offence  that  the  distraining  lord  committed, 
when  he  retained  the  beasts  distrained  after  the  tenant  had 
offered  gage  and  pledge  for  their  return  to  him,  was  known 
as  vetitum  namii  (refusal  of  the  nam  or  distress),  and  stood 
next  door  to  robbery.  ^  If  the  distrainer  will  not  deliver  the 
beasts  after  gage  and  pledge  have  been  offered,  then  it  is  the 
sheriff 's  duty  to  deliver  them.  To  deter  the  person  distrain- 
ing from  refusing  or  neglecting  to  deliver  a  distress  which 
had  been  driven  into  a  stronghold,  the  Statute  of  Westminster 
I.  c.  17,  directed  that  such  stronghold  or  castle  should  he  razed 
and  thrown  down  by  the  sheriff,  aided,  if  necessary,  by  the 
posse  comitatus  (power  of  the  county).  Under  this  name  of 
replevin,  in  the  time  of  Henry  II.,  an  action  was  developed 
which  proved  to  be  convenient  for  the  settlement  of  disputes 
between  landlord  and  tenant,  and  which  owed  its  vigor  and 
its  rapidity  to  the  supposition  that  a  serious  offence  had  been 
committed  against  the  king.  Replevin  gave  back  at  once  to 
the  husbandman  his  chattels,  so  that  his  labors  might  not  be 
interfered  with,  and  ultimately,  if  he  prevailed  in  the  suit, 
gave  him  damages  for  their  wrongful  distraint. 

It  is  said  in  Comyn's  Digest  (^Title  Pleader,  3  K.  1),^  "If 
a  man  tortiously  takes  the  person   or   goods  or  chattels  of 

1  P.  &  M.  Hist.  II.  575.  2  See  also  Selw.  N.  P.  II.  1184. 


74  COMMON-LAW  PLEADING. 

another,  and  detains  them,  a  replevin  lies,  upon  which  the 
sheriff  shall  be  commanded  upon  pledges  to  make  deliverance 
of  the  same  person  or  goods."  By  the  common  law  the  per- 
son of  a  man  was  replevied  by  a  writ  de  Jiomine  replegiando 
(for  the  replevying  of  a  man).  Of  this  last  writ  we  shall 
speak  again  when  considering  the  writ  of  Habeas  Corjms. 

Originally  in  this  action  the  plaintiff  procured  from  the 
Chancery  the  writ  of  replevin  commanding  the  sheriff  to  seize 
and  restore  to  him  his  chattels.  He  could  not  get  this  writ 
until  he  had  given  security  to  prosecute  an  action  against  the 
tortious  taker  to  determine  the  right  to  the  chattels,  and  to 
return  them,  if  the  right  should  be  determined  against  him, 
to  that  taker  who  was  of  course  the  defendant  in  the  action. 
If  the  sheriff  made  return  to  this  writ  that  the  defendant  had 
eloigned  (removed  afar  off)  the  chattels,  or  that  they  were 
dead,  etc.,  then  the  plaintiff  could  have  a  capias  in  withernam 
(you  shall  take  as  a  further  distress)  authorizing  the  sheriff 
to  seize  so  many  of  the  defendant's  cattle  as  were  equivalent 
in  value  to  those  distrained.^ 

Under  the  original  writ  the  plaintiff,  whether  or  not  he  got 
back  his  chattels  or  their  equivalent  in  value,  was  compelled, 
in  accordance  with  the  terms  of  his  engagement  and  security 
given,  to  prosecute  his  action  against  the  tortious  taker.  In 
his  declaration,  the  plaintiff  alleged,  if  he  had  recovered  his 
chattels,  that  the  defendant  had  detained  (detinuif)  them ; 
and  he  only  got  damages  for  their  detention  ;  but  if  he  had 
not  recovered  the  chattels,  then  he  declared  that  the  defendant 
detains  (detinef)  them,  and  he  got  damages  not  only  for  the 
detention  but  also  for  the  value  of  the  goods.  These  forms 
were  called  respectively  replevin  in  the  detinuit  and  in  the  de- 
tinet ;  if  only  a  part  of  the  goods  had  been  recovered  the  action 
was  in  the  detinuit  as  to  those  that  were  restored  and  in  the 
detinet  as  to  the  rest.^ 

From  the  necessity  of  an  application  to  Chancery,  when  the 
distress  was  taken  in  a  distant  part  of  the  kingdom,  delay  and 
expense  resulted.     To  remedy  this,  the  Statute  of  Marlebridge 

^  Com.  Dig.  ubi  supra.  2  McKelvey  on  Pleading,  49 ;  Com. 

Dig.  Title  Pleader  (3  K.  10). 


OF  FORMS   OF  ACTIONS.  75 

(52  H.  III.)  provided  that  "  if  the  beasts  of  any  person  are 
taken  and  unjustly  detained,  the  sheriff,  after  complaint  made 
to  him,  may  deliver  them  without  the  hindrance  or  refusal  of 
the  person  who  shall  have  taken  the  beasts."  ^  After  this 
statute  was  enacted,  the  tenant  made  his  complaint  to  the 
sheriff,  gave  his  security  as  before  to  prosecute  his  suit  and 
at  the  same  time  filed  his  declaration,  which  was  always  in  the 
detinuit  and  assumed  that  the  goods  or  their  equivalent  would 
be  taken  by  the  sheriff  upon  the  writ  and  delivered  to  the 
plaintiff.  But  the  damages  recovered  included  the  value  of 
the  chattels  in  case  they  were  not  restored  to  the  plaintiff,  and 
for  this  purpose  it  was  customary  to  allege  their  value.^ 

Upon  these  points  there  is  some  confusion.  It  is  said  by 
Gilbert :  "  When  the  sheriff  does  not  replevy  the  beasts,  there 
you  must  recite  the  writ  in  the  detinet  and  count  in  the 
detinet  also  because  the  beasts  are  not  delivered  ;  and  there 
you  recover  as  well  the  value  of  the  beasts  in  damages,  as 
damages  for  the  detention  anU  this  is  a  shorter  way  than  to 
sue  a  withernam,  etc."  ^ 

A  more  recent  writer  confirms  him  thus :  the  plaintiff  may, 
if  the  cattle  be  withheld,  proceed  in  the  cause,  and  recover 
damages  to  the  full  amount  of  the  goods,  as  well  as  for  the 
detention.^  But  in  fact  the  goods  were  almost  universally 
delivered  to  the  plaintiff  in  the  replevin.^  Hence,  we  find 
Chitty  saying  that  replevin  in  the  detinet  has  become  obsolete  ; 
that  only  replevin  in  the  detinuit  remains  in  force,  in  which 
the  plaintiff  can  not  recover  the  value  of  the  goods  them- 
selves.^ And  this  is  fortified  by  a  note  of  Sergeant  Williams 
to  the  effect  that  it  was  not  usual  to  insert  the  price  of  the 
chattels  in  the  declaration  in  replevin,  as  their  value  could  not 
be  recovered.'  . 

Replevin  ^  can  only  be  supported  for  taking  a  personal  ; 
chattel,  and  not  for  an  injury  to  things  affixed  to  the  free- 1 
hold.     The  plaintiff  must  at  the  time  of  the  tortious  taking  * 

1  Selw.  N.  P.  II.  1186.  5  ii,id,  4.3. 

2  McKelvey  on  Pleading,  50 ;  F.  N.         «  Chit.  PI.  146. 

B.  69  L.  note  (c).  ^  2    Saund.   320,   n.   (I).      See  also 

3  Gilbert  on  Replevin,  167.  Selw.  N.  P.  II.  1215. 

<  Wilkinson  on  Keplevin,  20,  43.  8  Chit.  PI.  145-149. 


76  COMMON-LAW  PLEADING, 

i 

have  bad  either  the  general  property  in  the  goods  taken,  or  a 
special  property  in  them  as  bailee,  pawnee,  etc.  Replevin 
can  not  be  supported  if  the  plaintiff  have  not  the  imme- 
diate right  of  possession.  At  common  law,  it  lay  only  for  an 
unlawful  taking.  An  excessive  distress  was  not  therefore 
remediable  by  this  action,  and  consequently  if  any  rent,  how- 
ever small,  were  due,  replevin  would  not  lie. 

In  this  action  both  the  plaintiff  and  the  defendant  are  con- 
sidered as  actors.  The  defendant,  having  distrained,  is  called 
on  to  justify  his  action ;  this  he  does  in  his  plea  which,  if  he 
justify  in  the  right  of  himself  or  of  his  wife  is  called  an  avowry, 
or  a  cognizance,  if  he  justify  in  the  right  of  another  by  whose 
command  he  acted.  This  plea,  as  it  contains  the  defendant's 
justification  and  presents  the  real  question  to  be  tried,  ^.  e., 
the  legality  of  the  distress,  is  in  its  functions  a  declaration, 
and  the  plaintiff 's  replication,  a  plea ;  and  so  in  this  case  the 
pleadings  are  all  postponed  one  step. 

The  defendant  might  not  justify,  but  might  deny  the  taking. 
He  might  also  claim  property  in  the  chattels,  in  which  case 
the  sheriff 's  power  to  replevy  them  was  suspended  until  the 
question  of  property  was  settled.^  Again,  he  might  deny  tak- 
ing the  chattels  in  the  place  alleged.  None  of  these  incidents 
is  of  importance  to  us  here. 

The  declaration  in  this  action,  which  is  local,  requires 
certainty  in  the  description  of  the  place  where  the  distress 
was  taken,  and  the  description,  number,  and  value  of  the 
goods  taken  must  be  given  with  certainty.  The  judgment, 
when  for  the  plaintiff,  is  that  he  recover  his  damages  and 
costs ;  when  for  the  defendant,  it  was  at  common  law  pro 
retorno  hahendo  (to  have  a  return)  to  him  of  the  goods 
replevied. 

;/  The  action  of  replevin  has  in  many  of  the  United  States 
displaced  detinue  and  trover,  and  is  the  common  remedy  to 
recover  possession  of  a  chattel  and  damages  for  its  wrongful 
detention,  or,  in  case  it  can  not  be  specifically  recovered, 
damages  for  its  value  as  well  as  for  its  detention.     Space  is 

^  The  student  may  consult  Wilkinson  on  Replevin,  46,  and  passim,  as  to  the 
details  of  this  action. 


OP   FORMS   OP   ACTIONS.  77 

wanting  here  to  consider  this  development  of  the  action,  but 
the  student  who  understands  the  common-law  action  will 
have  little  difficulty  in  mastering  its  present  form  and 
functions.! 

Inadequacy  op  Formed  Actions. 

Pausing  now  to  reckon  and  estimate  the  means  of  redress 
offered  to  us  by  the  old  common  law,  we  find  that  we  are 
provided  with  remedies  more  or  less  adequate  with  respect  to 
injuries  to  land  and  to  its  possession.  Injuries  to  incorporeal 
hereditaments  are,  however,  not  remediable  by  a  personal 
action.  When  we  consider  personal  rights,  there  are  many 
serious  defects  in  the  legal  machinery.  No  remedy  is  pro- 
vided for  the  enforcement  of  an  agreement  not  itself  under 
seal  or  protected  by  a  sealed  instrument.  The  remedy  which 
is  given  for  the  recovery  of  a  debt  not  evidenced  by  a  judg- 
ment, statute,  or  sealed  instrument  is  miserably  inefficient,  for 
the  defendant  can  defeat  it  by  wager  of  law.  The  remedy 
for  the  recovery  of  specific  articles  of  personal  property  is 
liable  to  this  same  disaster,  and  moreover  requires  a  definite- 
ness  of  description  of  the  article  pursued,  which  often  cannot 
be  given.  When  we  consider  the  protection  afforded  against 
acts  of  personal  wrong,  we  find  that  only  direct,  forceful, 
immediate  injuries  are  recognized.  No  remedy  exists  for 
injuries  to  reputation,  or  to  health  ;  none  for  acts  of  omis- 
sion, of  negligence,  or  of  deceit ;  and  none  for  the  violation 
of  personal  rights  which  are  not  in  possession. 

Actions  on  the  Case. 

It  is  thus  apparent  that  the  formed  actions  had  ceased  to  be 
adequate.     There  were  many  cases  which  did  not  fall  exactly 
within  the  definition  of  a  trespass,  but  which  required  a  remedy. 
But  in  order  to  have  a  new  remedy  a  new  form  of  writ  must  first 
be  provided.     Accordingly  the  famous  Statute  of  Westminster  y 
2d  (13  Edward  I.  c.  24)  authorized  the  Chancery  to  frame  new  \ 
writs  in  cases  similar  in  principle  to  those  in  which  the  old  ' 
formed  writs  had  applied.     Thus  writs  of  trespass  on  the  case 

^  See  Cobbey,  Morris,  or  Wells  on  Keplevia. 


78  COMMON-LAW   PLEADING. 

began  to  make  their  appearance.  These  writs  stated  a  ground 
of  complaint  analogous  to,  but  not  quite  amounting  to,  a 
trespass  as  sued  for  in  the  old  writs.  Thus  a  smith  might 
lame  a  horse,  left  with  him  to  be  shod,  by  negligently  driving 
a  nail  in  his  hoof.  The  owner  could  not  bring  trespass,  if  he 
had  left  the  horse  in  the  smith's  possession.  But  laming  the 
horse  was  equally  a  wrong  whether  the  owner  held  the  horse 
by  the  bridle  or  left  it  in  the  possession  of  the  smith,  and  as, 
in  the  latter  case,  the  wrong  was  closely  connected  with  a 
trespass,  although  not  one,  the  new  law  gave  the  owner  a 
writ  of  trespass  on  the  case.^ 

In  his  commentary  on  this  statute  Lord  Coke  asserts  that 
it  is  merely  declaratory  of  the  common  law,  and  Mr.  Bige- 
low  has  shown  that  in  earlier  times  the  framing  of  writs  had 
been  to  some  extent  in  the  discretion  of  the  Chancery .^ 

"  The  words  of  the  stjitute_give  no  power  to  make  a  com- 
pletely new  departure  ;  writs  are  to  be  framed  to  fit  cases 
similar  to,  but  not  identical  with,  cases  falling  within  existing 
writs,  and  the  examples  given  in  the  statute  itself  are  cases 
of  extension  of  remedies  against  a  successor  in  title  of  the 
i;aiser  of  a  nuisance,  and  for  the  successor  in  title  of  a  person 
who  had  been  disseised  of  his  common.  ...  In  the  course  of 
centuries,  by  taking  certain  writs  as  starting  points,  and  ac- 
cumulating successive  variations  upon  them,  the  judges  added 
great  areas  to  our  common  law,  and  many  of  its  most  famous 
hranchcs,{  assumjjsit  and  trover  and  conversion  for  instance, 
were  developed  in  this  way ;  but  the  expansion  of  the  com- 
mon law  was  the  work  of  the  15th  and  subsequent  centuries, 
when,  under  the  stress  of  eager  rivalry  with  the  growing 
equitable  jurisdiction  of  the  Chancery,  (the  judges  strove, 
not  only  by  admitting  and  developing  actions  on  the  case, 
but  also  by  the  use  of  fictitious  actions,  following  the  example 
of  the  Roman  Praetor,  to  supply  the  deficiencies  of  their 
system."JP 

The  student  will  note  that  only  the  deficiencies  of  the  formed 

1  Holmes,  C.  L.  274,  275.  Chit.   PI.   83  ;    Kinlyside  v.  Thornton 

2  Ker.  Eq.  Ju.   10;   Hist.  Pr.   198;    e«  a^.,  2  Bla.  Rep.  1113. 

8  Ker.  Eq.  Ju.  10,  11. 


OF   FORMS   OF   ACTIONS.  79 

actions  with  respect  to  remedies  for  wrongs  were  provided  for 
at  the  outset.  The  defects  on  the  side  of  contract  had  to 
wait.  As  he  will  presently  see,  more  than  two  Imndred  years 
elapsed  before  the  action  of  special  assumpsit  was  sustained, 
and  the  writ  of  general  assumpsit  was  later  still. 

After  assumpsit  and  trover  had  split  off  from  the  general 
action  on  the  case,  the  latter  remained,  as  it  had  been  from 
its  origin,  distinctly  a  tort  action.  Nevertheless,  as  will  be 
seen  when  we  speak  of  the  election  of  actions,  case  ^s  a__con- 
current  remedy  with  assumpsit  for  many  breaches  of  contract, 
the  plaintiff  being  allowed  to  state  the  gravamen  of  his  action 
as  a  neglect  of  duty,  instead  of  as  a  b?!G?;Ch_of  contract.^ 

^ctions  on  the  case^  lie  generally  to  recover  damages  for 
torts  not  committed  with  force  actual  or  implied,  or  £oi\acts 
committed  by  force  when  the  thing  injured  is  not  tangible  ; 
or  when  the  injury  is  not  immediate  but  only  consequential ; 
or  where  the  interest  in  the  property  affected  is  only  in 
reversion;  or  wlli:^_tli<L-"^^il9iiS^ul  act  is  not  done  directly  by 
the  person  to  be  charged,  but  by  his  servant,  without  his 
authority  yet  in  the  course  of  his  business.  Torts  of  this 
nature  are  to  the  absolute  or  relative  rights  of  persons,  or  to 
personal  property  in  possession  or  reversion,  or  to  real 
property,  corporeal  or  incorporeal,  in  possession  or  reversion. 
These  injuries  may  be  either  by  non-feasance  (the  omission 
of  some  act  which  the  defendant  ought  to  perform),  or  by 
mis-feasance  (the  improper  performance  of  some  lawful  act), 
or  by  mal-feasance  (the  doing  of  an  act  which  the  defendant 
ought  not  to  do).  These  respective  torts  are  commonly  the" 
performance  or  omission  of  some  act  contrary  to  the  general 
obligation  of  the  law,  or  to  the  particular  rights  or  duties  of 
the  parties,  or  to  the  obligation  of  some  express  or  implied 
contract  between  them.^ 

Case  is  the  proper  remedy  for  any  injury  to  the  absolute 
rights  of  persons  where  the  injury  is  not  immediate  but 
mediate  or  consequential.  Thus  for  hurt  done  by  mischievous 
animals  which  their  owner,  having  notice  of  their  propensities,; 

1  Govett  V.  Eadnidge,  3  East,  70.  8  iHfj^  i23. 

2  Chit.  PI.  122-135. 


80  COMMON-LAW   PLEADING. 

has  kept ;  for  special  j^g-ffl^gQ  resulting  from  a  public  nui- 
sance  ;  for  injury  received  by  falling  over  a  log  which  the 
defendant  has  negligently  thrown  in  the  public  highway ; 
in  all  these  instances  case  and  not  trespass  is  the  remedy. 
(But  if  the  injury  were  immediate,  as  if  the  defendant  incited 
the  dog  to  bite,  or  let  loose  a  dangerous  animal  which  did 
injury,  or  threw  the  log  and  hit  the  plaintiff  therewith,  the 
remedy  would  be  trespass. ; 

Again  if  the  injury  be  inflicted  through  the  regular  pro- 
cess of  a  court  of  competent  jurisdiction,  though  this  process 
be  maliciously  set  in  motion,  case  for  malicious  prosecution 
is  the  proper  remedy. 

-—Case.. is  the  appropriate  action  for  injuries  to  health  (nui- 
v^ance)  or  to  reputation  (libel  and  slander).  It  is  the  remedy 
against  sheriffs  and  other  officers  acting  ministerially  (where 
they  have  no  discretion  as  to  the  performance  of  a  duty)  and 
not  judicially,  for  refusing  bail,  etc.  ;  it  also  lies  against  sur- 
geons, attorneys,  and  others,  for  want  of  skill  or  care  in  the 
discharge  of  their  duties,  in  which  cases,  however,  assumpsit 
may  be  brought. 

Actions_for^injuries  to  the  relative  rights  of  persons,  as 
for  seducing  or  harboring  wives,  and  enticing  away  or  har- 
boring servants  or  apprentices^  are  j)rpperly  in  case,  although^ 
as  we  have  seen,  trespass  also  will  lie  for  the  seduction  or 
debauching  of  a  wife,  daughter,  or  servant. 

Where  there  has  been  any  frauds  misrepresentation,  or 
deceit  independent  of  written  contract,  case  is  the  proper 
remedy. 

For  the  negligent  driving  of  a  servant,  the  master  can  only 
be  sued  in  case,  and  it  is  clearly  the  proper  remedy  for  an 
injury  occasioned  by  negligence  in  navigating  shipsi 

For  injury  to  personal  property  not  committed  with  force, 
or  not  immediate  (injuries  resulting  from  neghgence  or 
omission),  or  where  the  plaintiff's  right  thereto  is  in  reversion, 
case  should  be  brought. 

This  action  lies  against  a  sheriff  for  making  a  false  return 
of  ^^ nulla  hona^''  (no  goods)  to  a  writ  of  fi.  fa.,  or  for  not 
levying  under  it  when  he  should  have  done  so. 


OP   FORMS   OP   ACTIONS.  81 

With  respect  to  injuries  to  real  property  corporeal,  case  | 
lies  where  the  injury  is  not  immediate  but  consequential,  as  1 
for  so  placing  a  spout  near  the  plaintiff's  land  as  to  discharge 
water  thereon;  it  also  lies  where  the  plaintiff's  interest  is 
only  in  reversion,  for  injuries  affecting  the  reversion,  as  for 
cutting  down  trees  on  land  of  the  plaintiff's  leased  to  a  tenant, 
or  for  any  other  waste  committed  by  the  tenant  or  by  a 
stranger  during  the  lease.  [Case  is  the  proper  remedy  for  all 
injuries  to  incorporeal  hereditaments.^ 

It  is  impossible  to  name  hei'e  all  of  the  instances  in  which 
an  action  on  the  case  can  be  maintained.  In  fact,  the  law  ; 
has  never  put  a  limit  to  this  action.  As  has  been  seen,  it  ' 
was  the  instrument  which  the  judges  used  in  building  up 
the  law  of  England  as  we  know  it  to-day.  "  It  is  often 
alleged  that  by  a  liberal  construction  of  this  statute  (West- 
minster 2d),  the  need  for  the  Chancellor's  extraordinary 
jurisdiction  would  have  been  avoided.  Austin  with  character- 
istic vigor  of  language  says  that  '  Equity  arose  from  the 
sulkiness  and  obstinacy  of  the  common-law  courts,  which 
refused  to  suit  themselves  to  the  changes  which  took  place  in 
opinion  and  in  the  circumstances  of  society.'  ^  Blackstone 
writes  to  the  same  effect :  this  '  provision  (with  a  little 
accuracy  in  the  clerks  of  the  Chancery,  and  a  little  liberality 
in  the  judges,  by  extending  rather  than  narrowing  the 
remedial  effects  of  the  writ)  might  have  effectually  answered 
all  the  purposes  of  a  court  of  equity,  except  that  of  obtaining 
discovery  by  the  oath  of  the  defendant  ;'2  and  the  idea  is  not 
confined  to  modern  writers,  for  a  judge  of  the  reign  of 
Edward  VI.  said  that, '  the  subpoena  (the  equity  process)  would 
not  be  so  often  used  as  it  is,  if  we  paid  heed  to  actions  upon 
the  case.'  .  .  .  The  suggestion  is  however  an  unfounded 
one.  ...  It  is  not  true  that  without  wholly  revolutionizing 
their  procedure,  as  well  as  extending  their  jurisdiction,  the 
courts  could  have  afforded  the  kinds  of  relief  that  Equity 
ultimately  gave."^  It  is,  however,  true,  so  potent  is,,  this 
action  on  the  case,  that  to-day  courts  admit  its  adaptability 

1  Austin's  Jurisprudence,  615.  8  i^qj.  Eq_  ju.  n^  12. 

2  Bl.  Com.  III.  51  * 


82  COMMON-LAW   PLEADING. 

to  circumstances  which  only  the  growth  of  our  civilization 
has  made  possible.     If  our  law  can  respond  to  this  growth,  it 
must  do  so  mainly  through  the  capabilities  of  this  action.^ 
The  declaration  in  an  action  on  the  case  ought  not  to  state 


the  injury  to  have  been  cornmitted  w  et  armis,  nor  should  it 
conclude  contra  pacem.  In  other  points  the  form  of  the 
declaration  depends  upon  the  particular  circumstances  on 
which  the  action  is  founded,  and  consequently  there  is  greater 
variety  in  this  than  in  any  other  form  of  action.^ 

Assumpsit.^ 

The  Statute  of  "Westminster  2d  authorizing  these  new 
writs  was  enacted  in  the  year  1285.  It  was  not  until  1520 
that  it  was  decided  that  one  who  sold  goods  to  a  third  person, 
on  the  faith  of  the  defendant's  promise  that  the  price  should 
be  paidy  might  have  an  action  on  the  case  upon  the  promise. 
This  decision  introduced  the  whole  law  of  parol  guaranty. 
Cases  in  which  the  plaintiff  gave  his  time  or  his  labor  were 
as  much  within  the  principle  of  the  new  action  as  those  in 
which  he  parted  with  property.  And  this  fact  was  speedily 
recognized.  In  Saint-Germain's  book  (Doctor  and  Student), 
published  in  1531,  the  student  of  law  thus  defines  the  liability 
of  a  promisor :  "  '  If  he  to  whom  the  promise  is  made  have  a 
charge  by  reason  of  the  promise,  ...  he  shall  have  an 
action  for  that  thing  that  was  promised,  though  he  that 
made  the  promise  have  no  worldly  profit  by  it.'  From  that 
day  to  this  a  detriment  has  always  been  deemed  a  valid 
consideration  for  a  promise  if  incurred  at  the  promisor's^ 
request."  * 

How  was  an  action  of  tort  transformed  into  an  action  of 
contract,  "  becoming  afterwards  a  remedy  where  there  was 
neither  tort  nor  contract  ? " 

Nothing,  save  perhaps  the  history  of  the  action  of  eject- 

1  Cain  V.  C.  &  P.  Telephone  Co.,  3  8  See  "  The  History  of  Assumpsit," 
A  pp.  D.  C.  546 ;  Lumly  r.  Gye,  3  E.  &  by  J.  B.  Ames,  Harvard  Law  Review, 
Bl.  114 ;  Angle  v.  Chicago,  &c."r.  R.  Co.,    11.  1-19,  53-69. 

151  U.  S.  1.  *  Ames' History  of  Assumpsit.    Har' 

2  Chit.  PL  135.  vard  Law  Review,  IL  14. 


OF   FORMS   OF  ACTIONS.  83 

ment,  more  strongly  and  characteristically  indicates  the  de- 
velopment of  English  law  than  this  very  transformation.  Its 
history  can  only  be  given  here  in  outline ;  but  students  are 
especially  urged  to  study  it  closely  as  detailed  by  Professor 
Ames  in  the  articles  cited.^ 

The  actions  of  debt,  detinue,  covenant,  and  account  were, 
as  we  have  already  said,  soon  found  to  be  inadequate  as 
general  remedies  for  breach  of  contract.  But,  as  these  were 
T^  only  contractual  remedies,  resort  was  necessarily  had  to 
the  tort  action  of  trespass  on  the  case.  This  action  la)« 
originally  for  a  mal-feasance,  or  the  doing  an  act  which  was 
wrongful  ab  initio.  Its  next  development  was  in  the  way  of 
remedying  cases  of  mis-feasance ;  for  example,  where  a  per- 
son promised  to  do  a  certain  thing,  and  did  it  negligently,  or 
in  part  only,  and  then  abandoned  it.  Lastly,  and  with  diffi- 
culty, the  final  step  was  taken,  and  this  action  was  allowed 
in  a  case  of  pure  non-feasance,  i.  e.,  a  case  where  one  refused  yv 
or  neglected  to  do  what  he  was  bound  to  do.  In  this  form,  . 
it  was  applied  to  executory  contracts  not  under  seal,  and 
became  firmly  established  as  the  action  of  special  assmnj?siY. - 
Every  such  contract  required  a  consideration  to  render  it 
enforceable.  What  is  consideration  ?  Mr.  Justice  Markby 
characterizes  it  as  a  "  shifting  and  almost  unintelligible 
term."  ^  Professor  Ames  speaks  of  "  the  mystery  of  con- 
sideration," and  advances  a  theory  of  his  own  with  respect 
to  its  origin,  dissenting  from  each  of  the  three  distinct 
hypotheses  of  Mr.  Justice  Holmes,^  Mr.  Salmond,^  and  Judge 
Hare.^  The  wisest  course  to  pursue  here  will  be  to  quote  for 
the  student  the  words  of  Mr.  Anson  in  his  treatise  on  Con- 
tracts: "It  is  a  hard  matter  to  say  how  consideration  came 
to  form  the  basis  upon  which  the  validity  of  informal  (i.  e., 
not  under  seal)  contracts  might  rest.  Probably  the  quid  pro 
quo  (the  causa  debendij,  which  furnished  the  ground  of  the 

1  See  also  The  Law  of  Contract  in         8  Holmes,  C.  L.  285. 
Salmond's    Essays    in    Jurisprudence;         *  History  of  Contract,  219. 
Hare  on  Contract,  chaps.  VII.,  VIII. ;         *  Contracts,  chaps.  VII.  and   VIII. 

Holmes,  C.  L.  274-288.  See  also  Jenk's  Doctrine  of  Considera- 

*  Elements   of   Law,   Appendix  C,  tion  and   Pcdlock's  Principles  of   Con- 

271.  tract,  App.  note  E. 


84  COMMON-LAW  PLEADING. 

action  of  debt,  and  the  detriment  to  the  promisee  on  which 
was  based  the  delictual  action  of  assumjysit^  were  both  merged 
in  the  more  general  conception  of  consideration  as  it  was  de- 
veloped in  the  chancery.  .  .  .  '  Was  the  party  making  the 
promise  to  gain  anything  from  the  promisee,  or  was  the 
promisee  to  sustain  any  detriment  in  return  for  the  promise  ? ' 
If  so,  there  was  a  quid  pro  quo  for  the  promise,  and  an  ac- 
tion might  be  maintained  for  the  breach  of  it.  So  silent  was 
the  development  of  the  doctrine  as  to  the  universal  need  of 
consideration  for  contracts  not  under  seal,  and  so  marked 
was  the  absence  of  any  express  autliority  for  the  rule  in  its 
broad  and  simple  application,  that  Lord  Mansfield  in  1765 
raised  the  question  whether,  in  the  case  of  commercial  con- 
tracts made  in  writing,  tliere  was  any  necessity  for  consid- 
eration to  support  the  promise.  In  the  case  of  Pillans  v. 
Van  Mierop,^  he  held  that  consideration  was  only  required 
as  evidence  of  intention,  and  that  where  such  evidence  was 
effectually  supplied  in  any  other  way,  the  want  of  considera- 
tion would  not  affect  the  validity  of  a  parol  promise.  This 
doctrine  was  emphatically  disclaimed  in  the  opinion  of  the 
judges  delivered  not  long  afterwards  in  the  House  of  Lords, 
in  Rann  v.  Hughes.^  The  logical  completeness  of  our  law  of 
contracts,  as  it  stands  at  present,  is  apt  to  make  us  think  that 
its  rules  are  inevitable  and  must  have  existed  from  all  time. 
To  such  an  impression  the  views  set  forth  by  Lord  Mansfield 
in  1765  are  a  useful  corrective."^ 

Up  to  this  point  we  have  been  dealing  with  cases  in  which 
there  has  been  a  definite  bargain  or  agreement.  But  there 
were  many  other  cases  in  which  this  element  did  not  exist. 
Services  would  be  rendered  by  a  tailor,  or  other  workman,  with- 
out any  agreement  as  to  compensation.  Here,  formerly,  debt 
could  not  be  maintained,  because  there  was  no  liquidated  sura 
to  sue  for,*  and  assumpsit  would  not  lie  for  want  of  an  express 

1  3  Burr.  1663.  against  sucli  use  of  the  action.     (BL 

2  7  T.  R.  350,  n.  (a).  Com.  III.  154*;  Warren's  Law  Studies, 

3  Law  of  Contract,  54,  55.  479;  Chit.  PI.  ed.  of  1844,  I.  121,  n.  q  ; 
*  While,   as   has   been  stated,  debt    and  Ames,  Harvard  Law  Review,  VIIL 

couM  he  ma^mtained  on  a.  quantum  mei-uit  260).  Moreover  the  notion,  prevalent 
count,  yet   there  was  strong  authority    until  after  Blackstone  wrote,  that  in 


OF   FORMS   OF   ACTIONS.  85 

promise  to  pay ;  to  imply  a  promise  to  pay  so  much  as  the 
work  or  goods  were  reasonably  worth  was  to  take  a  long  and 
a  strong  step  forward.  It  was  not  until  1609  that  this  step 
was  taken/  and  thenceforth  a  quantum  vieruit  (so  much  as 
he  deserved)  was  a  common  count.  A  further  innovation 
was  made  in  1757,  when  Lord  Mansfield  ruled^  in  the  case  of 
Decker  v.  Pope,  that  "  When  a  debtor  desires  another  person 
to  be  bound  with  him  or  for  him,  and  the  surety  is  afterwards 
obliged  to  pay  the  debt,  this  is  a  sufficient  consideration  to 
raise  a  promise  in  law."  ^ 

The  origin  of  general  assumpsit  (indebitatus  assumjjsit, 
being  indebted,  he  undertook)  is  generally  attributed  to 
Slade's  case,^  decided  in  1603.  But  in  1542;  mention  is  made  dU"^^ 
of  this  form  upon  an  express  promise,  and  in  1573  the  Court 
of  Queen's  Bench  held  that  it  would  be  supported  by  proof  of 
a  simple  contract  debt,  without  an  express  promise,  and 
Slade's  case  confirmed  and  established  this  position,* 

This  form  of  indebitatus  assumpsit  came  also  to  be  used  as  ., 
a  remedy  upon  ^^wasj-contracts ;  these  are,  in  truth,  no  con- 
tracts at  all.  The  judgment  debtor  has  not  contracted  to  pay 
the  judgment  rendered  against  him.  But  when  he  does  not 
pay  he  cannot  be  said  to  be  guilty  of  any  tort.  Hence,  as  the 
division  of  actions  was  arbitrarily  limited  to  contract  and 
tort  actions,  these  cases  were  ranged  as  qua si-contvacts  under 
the  contractual  head.  In  all  such  cases,  which  are  neither 
truly  contract  nor  tort  actions,  a  fictitious  promise  will  be 
implied.  The  first  instance  of  such  an  action  is  the  city  of 
London  v.  Gorry,^  decided  in  1673,  which  was  assumpsit  for 
money  due  by  custom  for  scavage.  The  action  was  sustained, 
although  the  jury  found  specially  that  no  promise  to  pay  was 
expressly  made.  "  Assumpsit  was  allowed  upon  a  foreign 
judgment  in  1705,  and  '  the  metaphysical  notion '  of  a  prom- 
ise implied  in  law  became  fixed  in  our  law."®  This  fictitious 
promise  enabled  indebitatus  assumpsit  to  compete  with  debt 

del)t  only  the  exact  amount  sued  for  *  4  Co.  Rep.  92  a. 

could    be    recovered,   must    have    pre-  *  Ames,  ubi  supra,  16,  17. 

veuted  the  frequent  use  of  this  count.  6  2  Lev.  174. 

1  Warl)rook  v.  Griffin,  2  Erowul.  254.  ^  Ames,  ubi  supra,  66. 

2  Selw.  N.  P.  I.  77,  n. 


86  COMMON-LAW   PLEADING. 

on  simple  contract;  for  example,  a  sale  of  goods  as  a  fact 
would  support  debt,  for  it  was  a  causa  debendi;  but  it  would 
also  enable  tlie  law  to  imply  a  promise  on  the  part  of  the 
vendee  to  pay  their  value  to  the  vendor.  Thus  was  estab- 
lished, in  1657,  the  equitable  and  most  beneficial  action  of 
assumpsit  for  money  had  and  received  to  recover  money  paid 
to  the  defendant  by  mistake.^  Lord  Mansfield  so  encouraged 
this  action  that  it  became  almost  tlie  universal  remedy  Avhere 
a  defendant  had  received  money  which  he  was  obliged  by  the 
ties  of  natural  justice  and  equity  to  refund.^ 

Actions  of  assumpsit  upon  parol  contracts  came  to  be  re- 
garded as  actions  on  contract.  But  they  had  the  marks  of 
their  origin  ea-  delicto  strongly  impressed  upon  them.  Every 
reniedijable  breach  of  a  parol  promise  was  at  the^outset  re- 
garded as  a  deceit.  Accordingly  the  language  of  the  declara- 
tion is :  "  Yet  the  said  defendant^  not  regarding  his  said  promise, 
hut  contriving  and  fraudulently  intending,  craftily  and  subtly, 
to  deceive  and  defraud  the  plaintiff, ^^  etc.  The^lea  of  "  not 
^giiilty "  instead  of  "  non-assumpsit "  was  good  after  verdict, 
because  there  is  a  deceit  alleged. 

It  must  be  remembered  by  the  student  that,  during  these 
centuries  of  development,  equity  was  also  growing,  and  was 
from  time  to  time  even  aggressively  intervening  to  help  those 
suitors  for  whom  the  common  law  had  no  remedy.  It  was 
mainly  owing  to  her  rivalry  with  the  common4aw  courts,  that 
the  action  on  the  case  was  both  expanded  beyond  its  delictual 
limits,  and  also  pushed  to  such  extreme  lengths  within  those 
limits.^ 

As  developed,  the  action  of  assumpsit^  became  the  charac- 
teristic remedy  for  the  recovery  of  unliquidated  damages  for 
the  violation  of  an  express  contract  not  under  seal,  or  of  a 
promise  implied  by  law  from  an  executed  consideration  or 
from  alegalduty.  It  derived  its  name  from  the  Latin  word 
'assumpsit  (he  undertook),  which  was  originally  always  inserted 
in  the  declaration  as  descriptive  of  the  defendant's  under- 

1  Bonnel  v.  Fouke,  2  Sid.  4.  3  Ker.  Eq.  Ju.  11,  37,  86. 

2  Moses  V.  Macferlan,  2  Burr.  1012;         *  Chit.  PI.  85-97 
Ames,  ubi  supra,  68. 


OP   FORMS   OF   ACTIONS.  87 

taking.     As  has   been   seen,  there  were  two  forms  of   thi^ 
action,  the  one  sp_ecial^  brought  upon  an  express  contract^;  "j}^ 
and  the  other' general,  brought  upon  an  implied  or  a  fictitious  — — ' 
promise. 

We  shall  the  better  understand  its  functions  if  we  con- 
sider, first,  the  cases  in  which  neither  of  these  forms  could 
be  used.i 

When  a  party  has  a  security  of  a  higher  nature  than  a  sim- 
ple contract,  as  an  instrument  under  seal  or  a  record,  then  he 
must  proceed  in  debt,  covenant,  or  scire  facias  as  the  case  may 
require.  But  if  a  deed  be  only  executed  by  the  plaintiff  and 
not  by  the  defendant,  there  only  assumpsit  can  be  brought  for 
a  breach  by  the  defendant,''^  and  so  assumpsit  can  be  brought 
upon  an  invalid  deed  if  there  be  a  consideration  from  which 
a  promise  can  be  implied,  or  on  a  new  contract  upon  a  new 
consideration  to  pay  or  perform  a  contract  under  seal,  or 
where  such  a  contract  has  been  varied  by  a  simple  contract. 
The  taking  of  a  collateral  security  of  a  higher  nature  does 
not  prevent  a  suit  in  assumpsit  upon  the  original  contract. 
Assumpsit  cannot  be  supported  for  the  use  and  occupation  of  -— "^ 
real  estate  where  the  possession  is  adverse,  for  of  course  that 
circumstance  excludes  the  idea  of  any  contract ;  nor  is  as- 
sumpsit the  proper  remedy  in  a  case  of  deceit  not  apparent 
on  the  face  of  a  written  contract,  because  there  the  matter  of 
the  alleged  deceit  would  be  a  variance  of  the  writing,  and  an 
action  on  the  case  for  the  fraudulent  representation  is  the 
proper  remedy. 

As  this  action  of  asswnpsit  was  invented  to  remove  the  in- 
conveniences and  to  make  up  the  deficiencies  of  the  action 
of  debt,  we  find  that  it  was  generally  the  only  remedy  against 
an  executor  or  administrator  for  the  breach  of  a  contract  not 
under  seal ;  and  for  the  recovery  of  money  payable  by  instal- 
ments where  the  whole  debt  is  not  due  ;  also  in  all  cases  where 
the  simple  contract  is  for  the  payment  of  the  debt  of  a  third 
person  or  the  performance  of  some  collateral  thing,  and  upon 
an  award  to  perform  any  act  except  the  payment  of  money. 
It  not  only  entirely  escaped  the  wager  of  law,  but  general 

1  CLit.  PI.  91-94.  2  Hid,  92. 


88  COMMON-LAW  PLEADING. 

assumpsit  avoided  the  great  particularity  with  which  the 
plaintiff  was  required  to  set  forth  his  cause  of  action  in 
debt.i 

Special  Assumpsit  lay  for  the  breach  of  all  simple  contracts, 
^'whether  oral  or  in  writing,  made  in  express  terms.^ 

General  Assumpsit,  equally  with  special  assumpsit,  lay  to 
\  recover  damages  for  breach  of  a  promise  ;  but  in  this  case  the 
I  promise  was  an  implied  or  fictitious  one,  the  consideration  of 
'  which  was  found  in  the  existence  of  circumstances  creating  a 
f  duty.^  In  debt  on  simple  contract  the  obligation  arose  directly 
[from  these  circumstances.  In  general  assumpsit,  it  arose  from 
/  the  fictitious  promise  which  the  law  implied  from  those  same 
\  circumstances  and  in  consideration  of  their  existence,  and  the 
I  law  implied  this  promise  for  the  express  purpose  of  providing 
la  substitute  for  the  action  of  debt. 

It  will  be  evident  to  the  student,  from  what  has  been  said, 
\^  fthat -wherever  a  valid  simple  contract  can  be  made  or  implied] 
v;from  the  acts  of  the  parties,  there  assumpsit  can  be  brought; 
^ for  its  violation.     Hence  a  catalogue  of  the  cases  in  which 
special  asswnpsit  can  be  brought  would  require  to  be  co-ex- 
tensive with  the  sphere  of  simple  contract. 

General  assumpsit,  or  the  Common  Counts,  as  they  are 
\i  popularly  called,  cannot  be  supported  by  proof  of  a  special 
j  executory  contract.     The  law  will  not  imply  a  promise  where 
van  express  promise  exists.     Hence,  so  long  as  the  special  con- 
tract remains  executory,  it  must  be  declared  upon  in  special 
assumpsit.     But  where  it  has  been  performed,  there  it  may  be 
given  in  evidence  under  the  common  counts,  as  showing  the 
receipt  by  the  defendant  of  work,  or  goods,  etc.,  from  which 
fact  a  promise  will  be  implied  to  pay  the  stipulated  price  for 
them ;  if  there  be  no  such  stipulation,  their  value  can  be  re- 
covered under  these  counts.     In  cases  where  the  special  con- 
tract is  void,  or  has  been  abandoned,  or  where  an  innocent 

1  Ames,  uhi  supra,  57.  in   special   asstimpsit.     See   Bishop   on 

2  It  is  not  thought  advisable  to  com-    Contracts,  §§  257-263. 

plicate  tire  subject  by  treating  of  con-  ^  For  the  clearest  statement  of  the 
tracts  which,  tliough  implied  as  to  fact,  difference  'between  special  and  general 
!'.  e.,  contents,  are  nevertheless  express  assit7npsit,  see  Cutter  v.  Powell,  2 
contracts,  and  therefore  to  be  sued  for    Smith's  Leading   Cases  (8th  ed.),  48, 

notes. 


OP  FORMS   OF  ACTIONS.  89 

party  thereto  is  justified  in  abandoning  it,  there  a  remedy 
can  be  had  under  these  common  counts  for  the  fair  value 
(quantum  meruit,  or  quantum  valebant)  of  the  labor  done  or 
goods  furnished.^ 

The  Common  Counts  ^  included  what  were  called  the  money 
counts,  and  they  were  so  called  because  they  set  forth  cer- 
tain money  transactions  as  a  debt,  and  from  the  existence  of 
this  debt  the  consideration  for  the  feigned  promise  to  pay  the 
money  arose.  They  were  as  follows :  money  paid  to  the  de- 
fendant's use,  or  money  had  and  received  by  the  defendant 
under  such  circumstances  as  to  impose  upon  him  the  obliga- 
tion of  returning  it,  or  money  lent  to  the  defendant,  or  inter- 
est due  by  the  defendant  on  a  loan,  or  forbearance  of  money, 
or  on  an  account  stated  showing  a  balance  due  from  the  de- 
fendant. These  common  counts  also  included  claims  for  the 
use  and  occupation  of  land,  for  board  and  lodging,  for  goods 
sold  and  delivered,  for  goods  bargained  and  sold,  for  work, 
labor,  and  services,  and  for  work,  labor,  and  materials.  In 
these  also  circumstances  were  alleged  which  created  the  duty 
or  obligation  to  pay,  and  the  promise  to  pay  was  implied 
upon  this  consideration. 

In  the  quantum  meruit  (so  much  as  he  deserved  to 
have)  and  the  quantum  valebant  (so  much  as  they  were 
worth)  counts,  the  first  of  which  related  to  services  per- 
formed, and  the  second  to  goods,  etc.,  sold,  the  facts  of 
services  performed  or  of  goods  sold  were  directly  alleged  as 
the  consideration  of  the  fictitious  promise  to  pay,  in  the  one  i' 
case  what  the  plaintiff  deserved,  and  in  the  other  what  they 
goods  were  worthy 

It  must  be  noted  that  nothing  but  inpney  could  be  recovered 
under  the  common  counts. 

The  declaration  in  assumpsit  must  invariably  disclose  the 
consideration  upon  which  the  contract  was  founded,  the  con- 
tract itself,  whether  express  or  implied,  and  its  .breach.  The 
claim  of  damages  should  be  large  enough  to  cover  the  real 
amount  of  money .^ 

1  Cutter  V.  Powell,  2  Smith's  Leading         2  Chit.  PI.  297-309, 
Cases  (8th  ed.),  48,  notes.  8  /i/j.  95. 


90  COMMON-LAW  PLEADING. 

f1    ^O^-v*-' 

^    "^  Trover. 

It  was  as  desirable  to  devise  some  action  in  the  room  of 
detinue  as  it  had  been  to  substitute  one  for  debt,  since  the 
wager  of  law  was  a  legal  method  of  defence  in  both,  and  in 
detinue  even  greater  exactness  and  definiteness  of  descrip- 
tion were  required  than  in  debt.  According  to  Reeves' 
History  of  English  Law  this  action  was  split  off  from  the 
action  on  the  case  in  the  33d  and  34th  years  of  the  reign  of 
Henry  VHI.  (1542-3).i  But  it  appears  that  it  did  not 
receive  its  precise  form  until  the  fourth  year  of  Edward  YI. 
(1551).  At  this  time  "  a  writ  had  been  framed  wliich  sur- 
mised, that  the  plaintiff  being  possessed  of  the  thing  in  ques- 
tion, lost  it ;  and  that  the  defendant  found  it,  and  converted 
it  to  his  own  use,  upon  which  the  action  accrued,  i  This,  from 
the  suggestion  which  gave  the  cue  to  the  demand,  was  called  an 
action  sur  trover  et  conversion^  or  an  action  of  trover;  that  is, 
grounded  upon  a  supposed  trover  (finding)  by  the  defendant  of 
the  thing  demanded,  and  converting  it  to  his  own  use."  ^  By  a 
fiction  of  law,  actions  of  trover  were  at  length  permitted  to  be 
brought  against  any  person  who  had  in  his  possession,  no  matter 
how  that  possession  was  acquired,  the  personal  property  of  an- 
other, and  who  sold  or  used  that  property  without  the  consent 
of  the  owner,  or  who  refused  to  deliver  it  upon  demand  to  such 
owner.  The  injury  lies  in  the  conversion  of  the  plaintiff's 
property  and  the  depriving  him  of  its  use,  which  is  the  gist  of 
the  action  ;  .the  allegation  of  the  finding  or  trover  is  imma- 
terial and  not  traversable ;  the  fact  of  conversion  does  not 
necessarily  import  an  acquisition  of  property  by  the  defend- 
ant ;  the  action  is  brought  for  the  recovery  of  damages  to  the 
value  of  the  thing  converted,  and  not  for  the  thing  itself, 
which  can  only  be  recovered,  if  at  all,  in  detinue  or  replevin. 
Lord  Mansfield  thus  described  this  action :  "  In  form  it  is  a 
fiction ;  in  substance  it  is  a  remedy  to  recover  the  value  of 
personal  chattels  wrongfully  converted  by  another  to  his  own 
use ;  the  form  supposes  that  the  defendant  might  have  come 

1  Reeves'    Hist.    IV.   38.5,   386    (2d         2  Ibid.  526. 
London  ed.J. 


OF    FORMS   OF  ACTIONS.  91 

lawfully  by  it,  and  if  he  did  not,  yet  by  bringing  this  action 
the  plaintiff  waives  the  trespass  ;  iio_damages  are  recoverable 
for  the  act  of  talcing;  a]l  must  be  for  the  act  of  converting. 
This  is  the  tort  or  maleficium  (misdeed),  and  tCL  entitle  the 
plaintiff  to  recover,  two  things  are  necessary :  1st,  property  in 
the  .plaintiff ;  2d,  a  wrongful  conversion  by  the  defendant."  ^    -^ 

Trover  ^  lies  only  for  the  conversion  of  some  personal  chattel, 
and  not  for  injuries  to  real  property.  It  is  sustainable  only 
for  specific  articles,  but  these  articles  need  not  be  described 
with  certainly,  because  only  damages  for  the  conversion,  and 
not  the  thing  itself,  are  recovered  in  the  action.  Hence, 
unlike  detinue,  it  lies  for  money,  though  it  be  not  in  a  bag  or 
distinguishable  from  other  coin. 

In  order  to  support  this  action  the  plaintiff  must,  at  the 
time  of  the  conversion,  have  had  a  general  or  special  property 
in  the  chattel  converted,  and  also  the  actual  possession,  or  the 
right  to  immediate  possession  thereof.  The  person  who  has 
the  absolute  or  general,  and  not  the  mere  special,  property  in  a 
personal  chattel  may  sustain  this  action,  although  he  has 
never  had  the  actual  possession.  So  a  person  having  a 
special  property  in  the  goods,  may  support  trover  against  a 
stranger  who  takes  them  out  of  his  actual  possession,  and 
^  party  entitled  to  the  temporary  possession  may  bring  trover 
against  the  general  owner..  Generally,  a  special  property 
must  have  been  accompanied  by  possession  in  order  to  sustain 
the  action,  but  there  is  an  exception  to  this  rule  in  the  case 
of  one  who  has  also  an  interest  in  the  goods  converted. 
Without  such  absolute  or  special  property  the  action  can 
not  be  maintained  ;  but  it  may  in  most  cases  be  brought  by 
either  such  general  or  special  owner,  and  a  recovery  by  one 
bars  an  action  by  the  other.^ 

The  acts  of  conversion  are  manifold.  They  may  consist  of 
a  wrongful  taking  of  a  personal  chattel,  or  an  illegal  assump- 
tion of  its  ownership,  or  an  illegal  use  or  misuse  or  a  wrong- 
ful detention  thereof.  The  wrongful  taking  of  the  goods  of 
another,  who  has  the  right  of  immediate  possession,  is  of  it- 

1  Cooper  et  al.  v.  Chitty  et  al.,  1  Burr.         2  chit.  PI.  135-145. 
31.  8  Ibid.  138. 


92  COMMON-LAW  PLEADING. 

self  a  conversion,  and  so  are  the  wrongful  assumption  of 
ownership  with  respect  thereto,  and  the  illegal  use  or  misuse 
thereof.  But  unless  there  be  an  illegal  assumption  of  .prop- 
erty, trover  can  not  generally  be  supported  for  a  mere  omis- 
sion or  non-feasance  ;  therefore  trover  will  not  lie  against  a 
carrier  or  other  bailee  who  by  negligence  loses  goods  intrusted 
to  his  care.^ 

In  the  preceding  instances,  proof  of  the  wrongful  taking, 
etc.,  is  sufficient,  without  evidence  of  a  demand  by  the  plain- 
tiff upon  the  defendant  for  the  delivery  of  the  goods  in  ques- 
tion, and  a  refusal  of  such  demand ;  for  such  acts  are  in 
themselves  a  conversion.  But  where  the  plaintiff  is  not  pre- 
pared to  prove  some  such  act,  he  should  make  an  actual  de- 
mand upon  the  defendant  for  the  possession  of  the  chattels  in 
question  before  instituting  his  suit ;  for  in  such  case  trover 
can  not  be  supported  without  proof  of  a  demand  and  refusal, 
or  at  least  of  such  neglect  to  comply  with  the  demand  as  will 
be  equivalent  in  law  to  a  refusal.  Such  a  demand  and  non- 
compliance therewith  are  prima  facie  evidence  of  a  conver- 
sion. But  the  defendant  may  rebut  this  presumption  by 
showing  that  he  was  a  carrier,  and  lost  the  goods  in  his  pos- 
session as  such  by  negligence,  or  that  he  had  reasonable 
ground  to  doubt  the  plaintiff's  right  to  the  goods,  and  that  he 
offered  to  deliver  them  to  the  true  owner,  etc.  Such  refusal 
will  not  amount  to  a  conversion. 

In  such  cases,  where  it  is  doubtful  whether  the  evidence 
will  establish  a  conversion  so  as  to  support  a  count  in  trover, 
a  count  in  case  for  negligence,  etc.,  should  be  added,  if  there 
be  any  proof  to  sustain  it.  ^f  there  has  been  a  conversion, 
trover  lies,  although  the  goods  converted  be  afterwards  re- 
stored to  the  owner,  for  the  restoration  only  goes  in  mitigation 
of  damages.^  \ 

One  joint-tenant,  or  tenant  in  common,  or  co-parcener  can 
not  support  trover  against  his  co-tenant,  unless  the  latter  has 
destroyed  or  sold  the  chattel  in  question. 

•  For  a  wrongful  taking,  trover  may  be  brought  concurrently 
with  trespass ;  but  trover  may  often  be  brought  where  tres- 

1  Chit.  PI.  142.  2  Hid,  144. 


OF   FORMS   OF   ACTIONS.  93 

pass  will  not  lie,  for  trespass  can  not  be  brought  where  the 
taking  was  lawful  or  excusable  ;  yet  in  such  cases  trover  can 
be  maintained  for  the  unlawful  conversion.^ 

The  declaration  in  this  action  should  state  that  the  plaintiff 
was  possessed  of  the  goods  in  question  as  of  his  own  property, 
and  that  they  came  to  the  defendant's  possession  by  finding; 
but  the  omission  of  the  formal  words  is  not  material  after 
verdict,  and  these  words  are  not  traversable.  As  the  conver- 
sion is  the  gist  of  the  action,  it  must  necessarily  be  stated  in 
the  declaration.  The  judgment  is  for  damages  and  full  costs, 
and  the  damages  should  be  laid  large  enough  to  cover  the 
value  of  the  goods  and  the  loss  through  their  detention.^ 

/::{r^-^'''^^^  Mixed  Actions.  —  Ejectment.  J^ 

The  history  of  the  growth  of  the  action  of  ejectment  is, 
perhaps,  even  more  cliaracteristic  of  English  law  tlian  the 
development  of  the  action  on  the  case  which  we  have  just 
considered.  We  know  that  no  estate  for  a  less  period  than 
life  was  acknowledged  by  the  feudal  law  as  a  freehold.  No 
less  estate  was  considered  worthy  of  a  freeman's  acceptance. 
But,  as  we  have  seen,  with  advancing  civilization  English- 
men were  learning,  "  first  from  the  Jew,  then  from  the 
Lombard,  ...  to  lend  money  and  to  give  credit  for  the 
price  of  goods."  ^  With  the  development  of  trade,  and  the 
consequent  increase  of  town  population,  the  practice  grew 
of  letting  lands  for  terms  of  years.  These  terms,  how-, 
ever  long  they  might  run,  were  nothing  more  than  chattels^ 
real;  i.  e.,  mere  personal  property,  related,  it  is  true,  to  the V. 
realty,  but  sharing  nothing  of  its  sacred  quality.  Th.ey  gave' 
the  termor  no  rights  in,  no  possession  or  seisin  of,  the  land 
itself,  but  merely  the  benefit  of  an  agreement  with  his  lessor. 
lie  has  a  right  in  'personam  against  the  lessor  and  his  heirs. 
His  action  is,  as  we  have  seen,  an  action  of  covenant,  "  an 
action  which  seems  to  have  been  im^ented  for  the  enforce- 
ment of  what  we  should  call  leases."*  In  this  action  (in 
which  in  all  other  cases  only  damages  are  recoverable)  he 

1  Chit.  n.  144.  8  p.  &  M.  Hist.  II.  204. 

2  Ihid.  145.  *  Ihid.  II.  106. 


94  COMMON-LAW  PLEADING. 

can  recover  seisin  of  the  land,  and  thus  get  a  specific  per« 
formance  of^  his  covenant,  as  against  his  lessor,  as  well  as 
damages.  But  the  lessor's  assignees  were"  n'ot  bound  by  the 
lessor's  covenant;  hence,  the  lessor's  feoffee  could  oust  the 
termor,  and  leave  him  to  his  personal  remedy  for  damages 
for  covenant  broken  against  the  lessor  or  the  lessor's  heir. 
As  against  strangers,  the  termor  was  entirely  unprotected. 
If  he  was  ejected  by  some  third  person,  not  in  privity  with 
his  lessor,  such  ejectment  would  be  a  disseisin  of  the  lessor, 
who  tliereupon  would  bring  his  assize  of  novel  disseisin,  and 
thus  regain  possession ;  but  his  recovery  would  not  enure  to 
the  benefit  of  the  termor.  So  slight  was  the  estimation  in 
which  these  terms  for  years  were  held,  that  it  was  not  until 
the  time  of  Henry  III.  that  any  remedy  was  found  for  this 
deficiency.  About  the  year  1235  a  new  action  —  the  ^uare 
ejecit  infra  terminum  (wherefore  he  ejected  him  during  his 
term) — was  given  to  the  termor.  This  action  required  the 
defendant  to  show  why  he  deforced  the  plaintiff  of  certain 
lands  which  A  had  demised  to  him  (plaintiff)  for  a  term 
then  unexpired,  within  which  term  the  said  A  sold  the 
lands  to  the  defendant,  whereupon  the  defendant  ejected  the 
plaintiff  therefrom.  But,  strange  to  say,  the  complete  rem- 
edy is  missed.  This  action  cannot  be  used  against  ejectors 
in  general ;  it  will  only  lie  against  one  who  has  purchased 
from  the  lessor.  By  this  writ  the^termor  recovered,  as  by 
the  old  writ  of  covenant,  both  his  term  and  damages,  if  the 
term  were  unexpired,  or  his  damages  only  in  case  of  its  expira- 
tion before  judgment.  Yet  the  lessee  was  still  without  remedy 
when  dispossessed  by  a  mere  stranger  not  claiming  under 
his  lessor. 

As  the  importance  of  these  terms  for  years  increased,  the 
termors  began  to  demand  a  more  adequate  remedy.  We  find 
in  the  forty-fourth  year  of  Edward  III.  (1371),  the  first  re- 
corded instance  of  tlie  new  writ  of  ejectione  Jinnee  (ejectment 
from  the  farm).* 

This  writ  was  in  its  nature  one  of  trespass.  It  gave  the 
termor  a  remedy  against  all  persons  whomsoever  who  ousted 
1  Adams  on  Ejectment,  7,  note  (a)  (1st  American  edition,  1846). 


OF  FORMS   OF   ACTIONS.  95 

him  from  his  term,  except  the  lessor's  feoffee,  who,  coming 
into  possession  by  means  of  a  title,  could  not  be  said  to 
be  a  trespasser,  and  who,  consequently,  had  to  be  proceeded 
against  by  the  former  remedy  of  quare  ejeclt.  As,  however, 
the  plaintiff  had  not  a  freehold  interest,  he  could  only  recover 
damages  for  the  injury  he  had  sustained,  and  did  not  have 
restored  to  him  the  possession  of  his  term.  But  this  posses- 
sion was  the  thing  of  main  value.  Hence  disappointed  suitors, 
dissatisfied  with  the  common-law  remedy,  applied  to  courts  of 
equity  for  redress.  There  they  found  an  ear  open  to  their 
complaints,  and  a  strong  hand  eager  to  redress  their  grievances. 
'These  courts  granted,  as  against  the  lessor  and  his  privies,  si 
specific  performance  of  the  covenant,  and  against  third  per-| 
sons  a  perpetual  injunction  to  quiet  the  possession;  they  als(| 
required  restitution  of  the  land  itself  ' 

The  courts  of  common  law,  unwilling  to  yield  their  juris- 
diction to  their  civil-law  rival,  soon  responded  to  this  move  of 
the  equity  courts,  by  themselves  granting  in  this  action  of 
trespass  a  relief  not  warranted  by  the  original  writ,  nor  de- 
manded by  the  declaration,  viz.,  a  judgment  to  recover  the 
term  and  a  writ  of  possession  thereupon.  This  step  was  made 
at  some  time  between  the  years  1455  and  1499. 

We  have  now  reached  the  point  at  which  the  modern  action 
of  ejectment  was  conceived  of  as  a  possibility.  Here  we  have 
an  action  which  will  restore  a  termor,  ejected  by  a  stranger 
or  even  by  his  lessor,  to  the  possession  of  his  term,  in  addi-  ' 
tion  to  giving  him  damages  for  his  ejectment ;  we  have  more- 
over an  action  in  which  the  title  of  the  plaintiff  or  termor  to 
the  possession  of  the  land  in  question  was  incidentally  deter- 
mined. If  his  lessor  had  no  such  title,  then  the  term  was  void. 
This  question  of  title  could  always  be  raised  by  the  defen- 
dant's plea  of  not  guilty.  Hence,  so  often  as  real  ejectment 
occurred,  the  question  of  title  could  be  settled  in  this  action 
of  ejectione  firmce  without  a  resort  to  the  long,  intricate,  and 
costly  process  of  a  real  action. 

The  first  step  in  the  adaptation  of  this  action  to  its  larger 
use  was  what  we  may  call  2i  factitious  as  contrasted  with  the 
second  fictitious  process.    As  a  term  was  recovered  in  the 


9G  COMMON-LAW  PLEADING. 

action,  necessarily  a  term  must  be  created  ;  and  as  the  action 
must  be  brought  by  an  ejected  termor,  this  artificial  termor, 
if  we  may  use  the  expression,  must  go  upon  the  land  in  dis- 
pute and  be  ejected  therefrom.  Accordingly  the  party  out  of 
possession  claiming  title  to  the  disputed  land,  whom  we  shall 
call  the  adverse  claimant,  entered  upon  the  land  accompanied 
by  a  friend  to  whom,  whilst  actually  on  the  land  (to  avoid  the 
offence  of  maintenance)  he  sealed  and  delivered  a  lease  for 
years.  The  claimant  so  entering  must  have  a  present  right 
to  the  possession,  for  otherwise  his  entry  will  be  illegal  and 
will  not  authorize  him  to  convey  a  title  to  his  lessee.  The 
lessee,  having  acquired  a  right  to  the  possession  by  means 
of  the  lease  spoken  of,  remained  upon  the  land  until  the  claim- 
ant in  possession,  whom  wc  shall  call  the  occupant,  came  upon 
the  freehold,  i.  e.,  spied  him  and  came  his  way,  when  he  de- 
parted, and  was  esteemed  to  have  been  ejected,  and  to  have 
had  his  possession  trespassed  upon  by  the  occupant.  He  was 
even  permitted  to  consider  the  mere  presumed  pi-esence  of  the 
occupant  upon  the  land  in  dispute  as  an  ouster.  It  will  be 
seen  that  by  this  process  an  artificial  ejectment  has  been  con- 
trived ;  in  the  actual  ejedione  firmce  we  had  a  real  lease,  an 
entry  by  the  lessor,  and  an  ouster  by  the  occupant  of  the 
lessee  or  termor.  Here  we  have,  and  are  able  to  establish  by 
proof,  the  same  three  things,  but  we  have  made  them  to  order. 

This  however  did  not  detract  from  their  efficacy,  and  ac- 
cordingly the  lessee  served  a  writ  of  ejedione  firmce  on  the 
occupant  treating  him  as  an  ejector.  Upon  the  trial  the 
plaintiff  (the  lessee)  had  to  establish  his  right  to  the  posses- 
sion of  the  land  in  dispute  ;  but  he  derived  this  title  through 
his  lessor,  the  adverse  claimant,  and  thus  the  latter's  title 
was  brought  into  question  and  determined.  If  the  lessee  suc- 
ceeded, he  recovered  possession,  but  immediately  gave  it  up 
to  the  adverse  claimant. 

This  process  worked  no  injustice  so  long  as  the  occupant 
was  made  the  defendant,  or  actually  knew  of  this  collusive 
action.  But  after  a  while  a  trick  was  practised.  The  adverse 
claimant  proceeded  as  before,  entering,  sealing,  and  delivering 
the  lease  and  departing,  leaving  his  friend  in  possession ;  but 


OF   FORMS   OF   ACTIONS.  97 

he  immediately  procured  a  second  friend  to  enter  upon  the 
land  and  eject  the  first  friend,  who  tliereupon  made  this 
second  friend,  instead  of  the  occupant,  the  defendant  to  the 
action.  This  second  friend  was  called  the  casual  ejector. 
The  lessee  would  thereupon  get  judgment  against  the  casual 
ejector,  who  made  default,  and  in  this  knavish  way  the  occu- 
pant might  be  ousted  of  his  lands,  without  any  opportunity  of 
defending  his  title.  But  very  soon  the  courts  by  rule  refused 
to  permit  the  plaintiff  in  ejectment  to  proceed  against  the 
casual  ejector  without  giving  the  occupant  notice,  and  afford- 
ing him  an  opportunity  to  come  in  and  defend  his  title,  as  he 
was  always  allowed  to  do. 

The  action  of  ejectment  continued  in  this  condition  until 
the  time  of  the  Commonwealth  (1649-1660).  There  were 
many  inconveniences  connected  with  it.  These  actual  entries 
could  not  always  be  peacefully  or  conveniently  made.  Again, 
if  several  persons  were  in  possession  of  the  disputed  lands,  it 
was  necessary  to  execute  separate  leases  upon  the  premises  of 
the  different  tenants,  and  to  commence  separate  actions  upon 
the  several  leases.  Lord  Chief  Justice  Rolle  discovered  a 
remedy  for  all  of  these  inconveniences,  and  by  one  stroke  con- 
verted the  factitious  into  a  fictitious  process.  No  lease  is 
sealed  and  no  entry  or  ouster  is  really  made  ;  the  plaintiff 
lessee  and  the  defendant  casual  ejector  are  men  of  straw. 

A,  the  adverse  claimant,  delivers  to  B,  the  occupant,  a 
declaration  in  ejectment,  in  whicli  John  Doe  and  Richard 
Roe,  fictitious  persons,  are  made  respectively  plaintiff  and 
defendant ;  John  Doe  states  in  his  declaration  a  fictitious 
demise  of  the  lands  in  question  from  the  adverse  claimant  to 
himself  for  a  term  of  years,  and  complains  of  an  ouster  from 
them  by  Richard  Roe  during  its  continuance.  To  this  decla- 
ration is  annexed  a  notice  by  Richard  Roe  to  the  occupant, 
informing  him  of  the  proceedings,  and  advising  him  to  apply 
to  the  court  for  permission  to  defend  the  action  as  he,  Richard 
Roe,  has  no  title  and  will  make  no  defence.  If  the  occupant 
does  not  make  this  application  within  a  reasonable  time,  the 
court  will,  on  proper  proof  of  the  service  on  him  of  the  decla- 
ration and  notice,  give  judgment  against  the  casual  ejector 


98  COMMON-LAW   PLEADING. 

and  execution  for  the  possession  of  the  lands  to  the  plaintiff 
lessee.  But  if  the  occupant  apply,  as  he  surely  will,  for  leave 
to  defend,  then  he  is  required  to  enter  into  what  is  called  the 
consent-rule.  In  the  original  form  of  the  action,  the  lease, 
entry,  and  ouster  were  real  and  could  readily  be  proved,  as 
was  required  to  be  done  ;  under  the  factitious  process,  the 
same  facts,  although  collusively  created,  were  yet  facts,  and 
could  therefore  be  proved  as  readily  as  before.  But  the  last 
step  had  made  them  mere  fictions  ;  they  could  not  be  proved. 
Therefore  the  consent-rule  was  a  matter  of  necessity.  The 
occupant  was  compelled  to  admit  a  series  of  fictions,  to- wit: 
the  lease,  the  entry,  and  the  ouster.^  Then,  and  not  until  then, 
he  was  permitted  to  come  in  and  defend.  The  declaration 
was  changed  by  making  him,  instead  of  the  casual  ejector, 
the  defendant,  and  then  the  cause  regularly  proceeded  to  trial.^ 

We  have  no  space  here  to  consider  the  question  of  morality 
involved  in  this  and  other  fictions  of  the  law.  They  seem  to 
be  essential  to  all  systems  of  jurisprudence.  In  English  law 
they  are  a  mark  of  the  intense  conservatism  of  the  race,  and 
of  its  strong  adherence  to  precedent  and  customary  law. 
They  made  pretence  of  doing  as  had  always  been  done,  and 
yet  by  means  of  the  pretence  they  advanced  through  broader 
procedure  to  higher  ideas.^ 

In  this  last  form  the  action  of  ejectment  persisted  until  the 
present  generation.  It  was  not  changed  in  the  District  of 
Columbia  until  the  year  1870.  To-day  it  probably  exists  no- 
where upon  the  globe  in  that  form.  Yet  its  history  can  never 
cease  to  be  a  characteristic  story  of  the  growth  of  English  law. 

Ejectment  lies  for  the  recovery  of  the  possession  of  real 
property,  in  which  the  lessor  of  the  plaintiff  has  ^tHe"  legal 

^  The  entry  admitted  by  the  consent-         2  gee   Lord   Mansfield's  description 

rule  is  the  entry  of  the  adverse  claimant  of  this  action  in  Fairclaim  i-.  Shamtitle, 

for  the  purpose  of  making  the  lease,  3  Burr.   1294,  and  in  Aslin  v.  Parkin, 

and  not,  as  stated  by  Blackstone,  the  2  Burr.  668. 

entry  of  the  lessee,  for  his  entry  was         ^  fhe  student  should  carefully  read 

admitted  by  the  confession  of  his  ouster,  on  this  subject  Chap.  II.  of  Sir  H.  S. 

Evans'  PI.  264 ;    Min.  Inst.  IV.  362 ;  Maine's  Ancient  Law,  and  an  essay  by 

Holt's  Lessee  v.  Smith,  1  Harr.  &  McH.  Oliver  R.  Mitchell,  Harvard  Law"  Re- 

273,   and   authorities  there  cited ;    Bl.  view,  VII.  249. 
Com.  IIL  202*   203*. 


t 


OP   FORMS   OP   ACTIONS.  99 

interest,  and  a  possessory  riglit  not  barred  by  the  statute  of 
limitations.  It  is  only  sustainable  for  the  recovery  of  pos- 
session of  property  upon  which  an  entry  may  in  point  of 
fact  be  made,  and  of  which  the  sheriff  can  deliver  actual 
possession ;  hence  it  does  not  lie  for  the  recovery  of  an  incor- 
jDoreal  hereditament.  Any  party  having  a  right  of  entry  may 
su}tport  an  ejectment,  but  the  right  of  possession  must  be 
exclusive  and  more  than  a  mere  license.  The  plaintiff  must 
recover  on  the  strength  of  his  lessor's  title,  and  not  on  the 
weakness  of  his  adversary's,  for  possession  gives  the  defend- 
ant a  title  against  every  person  who  cannot  show  a  sufficient 
title.  The  plaintiff  must  also  show  in  his  lessor  a  strict  legal 
title,  for  no  recovery  can  be  had  in  this  action  upon  a  mere 
equitable  interest.  The  lessor  of  the  plaintiff  must  have  had 
the  right  of  possession  both  at  the  time  of  the  sealing  and 
delivery  of  the  lease  mentioned  in  the  declaration,  and  at  the 
commencement  of  the  action ;  but  if  the  lease  expire  during 
the  trial,  the  plaintiff,  if  he  succeed,  shall  have  judgment  with 
a  perpetual  stay  of  execution  as  to  possession,  so  that  he  can 
recover  mesne  profits  and  costs. 

This  action  is  only  sustainable  for  what  in  fact,  or  in  point 
of  law,  amounts  to  an  ouster  or  dispossession  of  the  lessor  of 
the  plaintiff;  and  it  is  necessary  that  the  possession  of  the 
defendant  should  be  adverse  or  illegal  at  the  time  of  the  exe- 
cution and  delivery  of  the  lease  mentioned  in  the  declaration. 
If  there  be  no  ouster,  or  if  the  defendant  be  not  in  possession 
at  the  time  of  suit  brought,  the  action  will  fail.  A  wrongful  L_ 
detention,  even  after  a  lawful  entry  made,  will  amount  to  an  \ 
ouster  in  law.  Hence  ejectment  is  not  brought  where  there 
has  been  no  actual  ouster,  until  after  a  demand  made  for  pos- 
session and  a  refusal  thereof.^ 

Ejectment  has  been  very  generally  changed  by  the  aboli- 
tion of  the  fictions,  and  the  action  is  bi'ought  in  the  name 
of  the  adverse  claimant  against  the  occupant.  These  statu- 
tory ejectments  vary  in  form,  and  do  not  require  a  detailed 
review  here. 

*  For  the  general  subject  of  "Ejectment,"  see  Adams  on  Ejectment,  1st 
American  edition,  1846. 


100     A    \J  COMMON-LAW  PLEADING. 


Mesne  Profits. 


Until  the  invention  of  fictions  in  ejectment,  the  successful 
plaintiff  recovered  not  only  the  unexx^ired  portion  of  his  term, 
but  also  his  costs  and  damages  for  the  deprivation  of  his 
possession.  But  after  the  introduction  of  these  fictions  the 
courts  could  not  permit  the  recovery  of  substantial  damages 
for  an  imaginary  ouster.  Hence,  the  judgment  in  ejectment 
was  only  for  possession  and  nominal  damages.  To  recover 
the  real  damages  sustained,  the  plaintiff,  after  a  judgment  in 

:  his  favor  in  ejectment,  brought  another  action  of  trespass, 
called  an  action  for  mesne  profits.^  In  this  action  the  plain- 
tiff complains  of  his  ejection  and  loss  of  possession,  states  the 
time  during  which  the  defendant  held  the  lands  and  took  the 
profits,  and  prays  judgment  for  the  damages  which  he  has 
thereby  sustained. 

Upon  the  trial  of  the  ejectment  suit,  the  plaintiff's  lessor 
has  had  to  prove  title  in  himself  at  the  time  of  the  sealing 
and  delivery  of  the  lease  mentioned  in  the  declaration  in  that 

/suit.     Consequently  the  judgment  in  ejectment  is  conclusive 

/  evidence,  upon  the  trial  of  the  action  for  mesne  profits,  of 
the  plaintiff's  title  from  that  time.  But  it  is  not  evi- 
'dence  of  the  defendant's  possession,  for  the  consent-rule 
establishes  such  possession  only  from  the  time  of  the  service 
on  him  of  the  declaration.  Hence,  the  plaintiff  must 
prove  the  length  of  time  that  the  defendant  has  been  in 
possession  of  the  disputed  premises,  and  also  the  amount  of 
his  damages. 

But  if  the  plaintiff  seeks  to  recover  the  mesne  profits  ac- 
cruing antecedent  to  the  day  of  the  demise  in  the  declaration, 
he  must  produce  the  regular  proof  of  his  title  to  the  premises, 
for  the  judgment  in  ejectment  is  only  proof  of  title  subsequent 
to  the  date  of  the  demise.  He  must  also  in  such  case  prove 
an  entry  upon  the  lands. 
t     Mesne  profits  are  now  usually  recoverable  in  a  count  joined 

/\  with  the  count  in  ejectment. 

1  Adams  on  Ejectment,  1st  American  edition,  1846,  chap.  XTV. 


OP  FOEMS   OP  ACTIONS.  101 


Consequence  op  a  Mistake  in  Choosing  the  Foem  op 
Action. 

At  common  law  a  mistake  in  the  Form  of  Action  brought 
was  very  serious,  for  the  courts  considered  it  of  great  impor- 
tance to  preserve  the  boundaries  between  the  different  actions,^ 
and  hence  they  would  not  allow  the  parties,  even  by  agree- 
ment, to  try  a  question,  or  to  recover,  in  the  wrong  action. 
When  the  objection  to  the  form  of  the  action  is  substantial,  ; 
and  appears  upon  the  face  of  the  declaration,  it  may  be  taken 
by  demurrer,  by  motion  in  arrest  of  judgment,  or  by  writ  of 
error.  Thus,  where  the  plaintiff  in  an  action  on  the  case 
stated  that  the  defendant  wilfully  drove  his  horses  against 
the  plaintiff's  carriage,  the  court  arrested  the  judgment  be- 
cause it  appeared  from  such  allegation  that  the  action  should 
have  been  trespass  and  not  case.  When  the  objection  to  the 
form  of  action  does  not  appear  on  the  face  of  the  pleadings, 
it  can  only  be  taken  as  a  ground  of  non-suit.  If  for  such 
mistake  the  plaintiff  fail  in  his  action,  and  judgment  be  given 
against  him  for  that  reason,  and  not  upon  the  merits,  this  judg- 
ment is  no  bar  to  a  fresh  action.^ 

But  such  mistake  will  not  now,  so  liberal  is  the  law  in  per-/ 
mitting  amendments,  be  productive  of  more  serious  conse[ 
quences  than  delay,  expense,  and   mortification.     A  suitor 
may  amend  a  defective  statement  of  his  cause  of  action  by 
changing  from  one  form  of  contract  or  tort  action  to  another 
of  the  same  class ;  ^  some  authorities  have  even  permitted  the 
change  of  a  contract  to  a  tort  form,  and  vice  versa  of  a  tort 
form  to  one  in  contract.'*     But  if  he  introduce  a  new  cause  of  ; 
action  by  his  amendment,  as  he  may  do,  the  statute  of  limita-  I 
tions  will,  in  a  proper  case,  apply  to  the  new  cause  of  action  i 
stated  for  the  first  time  by  the  amendment.^ 

1  Chit.  PI.  84  n.  (e).  Chapman  v.  Barney,   129  U.  S.   677; 

2  T})id.  179.  Magruder  v.  Belt,  7  App.  D.  C.  303. 

8  Kirwan  v.  Eaborg,  1  Harr.  &  J.  296 ;         *  Smith  v.  Bellows,  77  Penn.  St.  441 ; 
Stebbins  v.  Insurance  Co.,  59  N.  H.  143;    Chapman  v.  Barney,  uhi  supra. 

'  Sicard  v.  Davis,  6  Peters,  124. 


102  COMMON-LAW  PLEADING. 


Extraordinary  Forms  op  Actions. 

It  seems  proper  to  indicate  to  the  student  those  extraordi- 
nary actions  which  are  not  ordinarily  needed  for  the  vindica- 
tion of  a  right,  but  which  upon  occasion  are  the  only  remedies 
adapted  to  the  administration  of  justice.  No  more  can  be 
done  than  to  name  them  in  order,  and  to  briefly  describe 
their  functions.  They  are  generally  in  force  in  this  country, 
and  are  obtainable  from  the  local  courts  of  record  of  original 
jurisdiction  at  common  law.  Nearly  all  of  them  are  the  sub- 
jects of  special  treatises,  and  to  these  the  student  must  be 
referred  for  detailed  information.  These  actions  are  Manda- 
mus, Procedendo,  Prohibition,  Quo  Warranto,  Information, 
Habeas  Corpus,  Certiorari,  and  Writs  op  Error.* 

Mandamus. 

/    A  writ  of  mandamus  (we  command)  is  a  mandate  issuing 
/in  England  in  the  king's  name  from  the  Court  of  King's 
/  Bench,  and  directed  to  any  person,  corporation,  or  inferior 
'  court  of  judicature  within  the  king's  dominions,  requiring 
/  to  be  done  some  particular  ministerial  act  therein  specified, 
which  appertains  to  their  duty,  and  which  the  Court  of  King's 
Bench  has  previously  determined  to  be  consonant  to  right 
and  justice.     It  is  a  high  prerogative  writ  of  an  extensively 
remedial  nature,  and  may  be  employed  in  all  cases  where  the 
applicant  has  a  right  to  have  anything  done  of  a  ministerial 
character,  and  has  no  other  adequate  specific  means  of  com- 
pelling its  performance.     The  student  must  especially  note 
that  it  lies  only  to  compel  the  doing  of  a  specific  ministerial 
act,  and  therefore  it  can  not  be  used  to  control  in  any  way  the 
judgment  or  discretion  of  a  judicial  or  other  officer  charged 
with  a  public  duty.     A  mandamus  lies  to  compel  the  admis- 

*  The   writ   of  audita   querela    (the  of  discharge  which  has  happened  since 

complaint   having   been   heard)    is    an  the  judijinent,  as,  e.  g.,  a.  geueTal  release 

antiquated  proceeding,  whereby  a  de-  executed  and  delivered  to  him  by  the 

fendant,    against    whom    judgment    is  plaintiff  after  the  rendition  of  the  judg- 

recovered,   and    who   is  in    danger  of  ment.     Such  relief    is    now    generally 

execution,  or  perhaps  actually  in  execu-  given   upon  motion.       Min.   Inst.   IV. 

tion,  may  be  relieved  upon  good  matter  846,  847. 


OF   FORMS   OF   ACTIONS.  103 

sion  or  restoration  of  the  applicant  to  any  office  or  franchise 
of  a  public  nature ;  for  the  production,  inspection,  or  delivery 
of  public  books  and  papers ;  to  compel  bodies  corporate  to 
affix  their  common  seal ;  and  for  an  infinite  number  of  other 
purposes.^ 

Writ  of  Procedendo. 
A  writ  of  procedendo  ad  judicium  (for  proceeding  to  judg- 
ment) issues  in  England  out  of  the  Court  of  Chancery^  com- 
manding an  inferior  court,  which  improperly  delays  judgment, 
to  proceed  to  give  it,  but,  of  course,  without  specifying  the 
judgment  to  be  given ;  for  that,  if  erroneous,  must  be  cor- 
rected by  means  of  a  writ  of  error  or  appeal.  Disobedience 
of  this  order  may  be  punished  as  a  contempt.  This  writ  is 
sometimes  confused  with  the  preceding  ;  but  a  mandamus 
commands  the  doing  of  a  specific  ministerial  thing,  while  a 
procedendo  requires  a  judicial  officer  to  go  on  with  the  dis- 
charge of  a  judicial  function.^  Professor  Minor  calls  atten- 
tion to  this  confusion  in  several  cases  in  the  Supreme  Court 
of  the  United  States.^  For  the  details  of  this  writ,  see  Fitz- 
herbert  {de  Natura  Brevium),  153  B.  240  D. 

Writ  of  Prohibition. 
When  a  subordinate  tribunal  is  solicited,  or  manifests  a  | 
disposition,  to  encroach  upon  the  jurisdiction  of  the  higher  1 
courts,  and  to  exercise  a  cognizance  not  belonging  to  it,  it  is  I 
a  grievance  for  which  the  common  law  has  provided  a  remedy  1 
by  the  writ  of  prohibition.     This,  in  England,  is  the  king's 
prerogative  writ,  issuing  properly  out  of  the  King's  Bench 
(but  sometimes  out  of  the  Court  of  Chancery,  Common  Pleas, 
or  Exchequer),  directed  to  the  judge  and  parties  to  a  suit  in 
any  inferior  court,  commanding  them  to  cease  from  the  pros- 
ecution thereof.     It  issues  upon  a  suggestion  that  either  the 
case  originally,  or  some  collateral  matter  arising  therein,  did 
not  belong  to  the  jurisdiction  entertaining  the  suit  in  ques- 
tion, but  to  some  other  court.    It  was  directed  in  proper  cases 

1  Min.  Inst.  IV.  311.  s  g  Peters,  291  ;  13  Peters,  290;  14 

2  Ibid.  310.  How.  25. 


104  COMMON-LAW  PLEADING. 

to  a  great  variety  of  inferior  courts,  to  wit :  the  ecclesiastical, 
the  university,  and  the  admiralty  courts,  the  court  of  chivalry, 
military  and  naval  courts-martial,  and,  of  course,  to  inferior 
courts  of  common  law.  If  either  judge  or  parties  proceeded 
after  such  prohibition,  they  were  punished  for  contempt. 
Where  the  jurisdiction  which  is  impeached  is  defended  by 
the  inferior  court,  or  where  the  question  whether  or  not  this 
jurisdiction  exists  in  that  court  is  a  difficult  or  doubtful  one, 
there  the  superior  court  will  try  the  matter  upon  a  feigned 
contempt  by  the  lower  court  in  disobeying  the  prohibition, 
and,  if  satisfied  that  the  lower  court  rightfully  has  jurisdic- 
tion, it  will  grant  a  writ  of  consultation,  returning  thereby  the 
cause  to  the  lower  court  to  be  there  proceeded  with.^ 

Quo  Warranto. 

X       A  writ  of  quo  warranto  (by  what  warrant  or  authority)  is 

j  %n  the  nature  of  a  writ  of  rigid  for  the  king  against  him  who 

/  glaims  or  usurps  any  office,  franchise,  or  liberty,  to  inquire  by 

/    what  authority  he  supports  his  claim,  in  order  to  determine 

the  right.     It  lies  also  in  case  of  non-user,  or  long  neglect  of 

V^  a  franchise,  as  well  as  for  mis-user  or  abuse  of  it.     It  com- 

,'    mands  the  defendant  to  show  by  what  warrant  he  exercises 

i      such  a  franchise,  having  never  had  any  grant  of  it,  or  having 

forfeited  it  by  neglect  or  abuse.     If,  upon  hearing,  judgment 

were  given  for  the  defendant,  it  was  final  and  conclusive, 

even  against  the  Crown ;  in  case  of  judgment  for  the  king, 

the  franchise  was  either  seised  into  the  king's  hands,  or,  if 

that  were  not  proper,  there  was  merely  a  judgment  of  ouster 

of  the  defendant. 

By  virtue  of  the  statute  of  9  Ann,  c.  20,  an  information  in 
the  nature  of  a  quo  warranto,  without  a  resort  to  the  prerog- 
ative writ  of  which  we  have  just  spoken,  may  be  brought  by 
leave  of  the  court,  at  the  relation  of  any  person  desiring  to 
prosecute  the  same  (who  is  called  the  relator)  against  any 
person  usurping,  intruding  into,  or  unlawfully  holding  any 
franchise  or  office  in  any  city,  borough,  or  town  corporate. 
And  now,  generally,  when  any  individual  or  body  politic  has 

1  Min.  Inst.  IV.  312-315;  F.  N.  B.  39  H. 


OF   FORMS   OF   ACTIONS.  105 

intruded  into,  usurped,  or  assumed  to  act  on  any  franchise, 
liberty,  office,  or  privilege,  not  being  legally  entitled  to  it, 
and  is  supposed  to  have  thereby  injured  either  another  party 
really  entitled  to  the  office  or  franchise,  or  the  public,  —  in 
such  case,  by  this  information,  the  party  whose  conduct  is 
challenged  is  called  upon  to  show  by  what  authority  he  has 
so  acted.  If  the  defendant  be  convicted,  judgment  of  ouster 
may  be  given  against  him,  and  he  may  also  be  fined,  for  the 
information  in  the  nature  of  a  quo  warranto  is  a  quasi-cvumwoX 
proceeding.^ 

Informations. 

In  England  an  information  on  behalf  of  the  Crown,  filed  in 
the  Exchequer  by  the  king's  attorney-general,  is  a  method  of 
suit  for  recovering  money  or  other  chattels  due  the  king,  or 
for  obtaining  satisfaction  in  damages  for  any  personal  wrong 
committed  to  the  land  or  other  possessions  of  the  Crown.  It 
is  grounded  on  no  writ  under  seal,  but  merely  on  the  intima- 
tion of  the  attorney-general  who  "  gives  the  court  to  under- 
stand and  to  be  informed  of "  the  matter  in  question,  upon 
which  the  party  informed  against  is  put  to  his  answer,  and 
trial  is  had  as  in  suits  between  private  subjects.  The  most 
usual  informations  were  those  of  intrusion  and  debt :  intru- 
sion, for  any  trespass  upon  the  Crown-lands,  and  debt,  upon 
any  contract  for  money  due  the  king  or  for  any  forfeiture  to 
the  Crown.2  With  criminal  informations  we  have  no  concern 
here. 

Habeas  Corpus. 

No  more  grievous  injury  can  be  inflicted  upon  a  person  than 
the  deprivation  of  his  personal  liberty.  To  redress  this  wrong 
the  ancient  law  provided  several  nominal  remedies.  By  the 
writ  of  mainprize,  which  issued  out  of  the  Chancery,  the 
sheriff  was  directed  to  take  sureties  (called  mainpernors)  for 
the  appearance  of  a  man  who  was  imprisoned,  and  to  set  him 
at  large,  where  he  had  committed  a  bailable  offence  and  bail 
had  been  refused  by  the  committing  officer,  or  where  such 

1  Bl.  Com.  III.  262  * ;  Warren's  Law         2  jn  Com.  III.  261  * 
Studies,  600. 


106  COMMON-LAW  PLEADING. 

officer  had  no  authority  to  admit  to  bail.  The  writ  de  Jiomine 
replegiando  (for  replevying  a  man)  lay  to  replevy  a  man  out 
of  prison,  or  out  of  the  custody  of  any  private  person,  upon 
giving  security  to  the  sheriff  that  the  man  should  be  forth- 
coming to  answer  any  charge  against  him.  And  if  the  man 
were  eloigned,  a  capias  in  withernam,  exactly  as  in  the  case  of 
replevin  of  a  chattel,  would  issue  to  imprison  the  defendant 
himself  till  he  produced  the  party.  But  for  many  offences  a 
man  could  not  be  replevied,  as  for  homicide,  or  the  breach  of 
the  forest  laws  ;  this  writ  was  especially  ineffectual  in  cases  of 
imprisonment  where  the  Crown  was  concerned  and  where  con- 
sequently the  subject  most  needed  protection.  The  writ  de  odio 
et  atia  (for  hatred  and  ill-will)  issued  out  of  Chancery,  and 
commanded  the  sheriff  to  inquire  whether  a  prisoner  charged 
with  murder  was  committed  upon  just  ground  of  suspicion,  or 
vhqtqXj  propter  odium  et  atiam  ;  and  if,  upon  inquisition,  due 
cause  of  suspicion  do  not  appear,  then  there  issues  another 
writ  commanding  the  sheriff  to  admit  him  to  bail.  We  shall 
have  to  return  to  this  writ  in  another  connection. 

As  we  have  said  these  writs  were  nominal  remedies,  but 
they  were  miserably  inefficient  to  protect  the  subject  against 
the  Crown. 

The  great  and  efficacious  writ  in  all  manner  of  illegal  con- 
finement is  that  of  habeas  corpus  ad  subjiciendum  (you  shall 
have  the  body  for  submission).  This  most  potent  and  famous 
writ  of  the  law  is  the  citizen's  writ  of  right,  and  is  the  means 
whereby  any  imprisonment,  or  restraint  of  liberty,  alleged  to 
be  illegal,  may  be  formally  inquired  into,  and,  if  found  to  be 
illegal,  the  party  may  be  finally  discharged.  The  person  hav- 
ing in  his  custody  the  party  restrained  of  his  liberty  must 
forthwith  produce  him  before  the  court  or  judge  issuing  the 
writ.  If  upon  inquiry  the  imprisonment  or  restraint  is  found 
to  be  lawful  and  under  sufficient  authority,  as,  for  instance,  in 
pursuance  of  the  commitment  of  a  magistrate  acting  within 
his  jurisdiction,  there  no  further  inquiry  can  be  made  as  to  the 
guilt  or  innocence  of  the  accused,  and  he  must  be  remanded 
to  custody.  But  if  he  be  held  without  lawful  authority,  he 
must  be  released.     The  benefits  of  this  writ  extend  to  the 


OF  FORMS  OF  ACTIONS.  107 

domain  of  private  as  well  as  of  public  life.  A  wife  or  a  child 
may  be  released  from  every  unjust  restraint  upon  personal 
freedom,  though  imposed  by  a  husband  or  a  father. 

We  have  only  space  to  add  that  this  writ  existed  at  com- 
mon law.  By  Statute  16  Car.  I.  c.  10,  the  right  to  its  use 
and  protection  was  solemnly  acknowledged  and  affirmed,  and 
safeguards  were  added  to  prevent  its  denial.  These  proving 
insufficient,  in  1680  the  famous  habeas  corpus  act  of  31  Car. 
II.  c.  2,  was  enacted.  This  is  the  original  of  all  American 
statutes  upon  the  subject,  and  its  provisions  are  so  complete 
that  it  has  for  more  than  two  centuries  accomplished  its 
purpose  with  wonderful  success.  It  is  provided  by  Article  I., 
Section  9,  Paragraph  2,  of  the  Constitution  of  the  United 
States,  that  "  The  Privilege  of  the  Writ  of  Habeas  Corpus 
shall  not  be  suspended,  unless  when  in  case  of  Rebellion  or 
invasion  the  public  Safety  may  require  it."  ^ 

Certiorari. 

A  writ  of  certiorari  is  a  writ  issued  from  a  superior  court  to 
one  of  inferior  jurisdiction,  commanding  the  latter  to  certify 
to  the  former  the  record  or  proceedings  in  a  particular  case. 
Upon  reception  of  the  record  the  superior  court  may  proceed 
with  the  cause  as  if  it  had  originated  there ;  or  the  superior 
court  may  simply  inspect  the  record,  where  the  proceeding  is 
a  summary  one,  and  not  according  to  the  common  law,  and 
determine  whether  there  has  been  any  material  irregularity 
therein.  Sometimes  the  writ  is  used  for  the  purpose  of  ob- 
taining a  fuller  and  more  complete  transcript  of  a  record  of  a 
lower  court  where  the  first  copy  is  imperfect.^  This  writ  is 
used  in  connection  with  habeas  corpus  where  it  is  desired  to 
test  the  sufficiency  of  a  commitment,  in  order  that  the  superior 
court  may  have  before  it,  on  the  hearing,  the  record  of  the  pro- 
ceedings by  virtue  of  which  the  commitment  was  issued. 

1  The  student  is  referred  for  a  most  402-429,    and   also  to  Hurd's  Treatise 

concise,  and  yet  complete,  account  of  the  on  Habeas  Corpus, 
history  and  functions  of  tliis  great  writ         2  Mjn.  last.  IV.  300;  F.  N.  B.  242  B 
to    Professor   Minor's   Institutes,    IV. 


108  common-law  pleading. 

Weits  of  Error. 

These  will  be  described  in  connection  with  the  review  of 
the  proceedings  in  an  action. 

The  student  has  thus  considered,  necessarily  briefly,  the 
principal  remedies  afforded  by  the  common  law.  He  can 
profitably  study  elsewhere  that  remedial  scheme  more  in 
detail  than  space  has  here  permitted.  He  will  find  most 
interesting  and  abundant  information  in  three  articles  by 
Professor  Maitland,  upon  the  history  of  the  register  of  origi- 
nal writs,  published  in  the  Harvard  Law  Review,  Vol.  HI. 
pp.  97,  167,  212.  Especially  let  him  go  carefully  over  the 
writs  described  in  Fitzherbert's  book,  and  arrange  them  under 
appropriate  heads  of  relief.  He  will  then  appreciate  these 
words  of  Pollock  and  Maitland :  "  The  more  we  read  of  thir- 
teenth century  law,  the  fewer  will  seem  to  us  the  really  new 
ideas  that  were  introduced  by  the  chancellors  of  the  later 
middle  ages^^ 

1  P.  &  M.  Hist.  n.  594. 


CHAPTER    IV. 

OF  THE  JOINDER  AND  ELECTION  OF  ACTIONS. 

Joinder  op  Actions. 

/  It  is  a  maxim  of  the  law  that  no  one  should  be  twice  pur- 
sued for  the  same  cause  of  action.  It  is  also  said  that  the 
jlaw  abhors  a  multiplicity  of  actions.  That  a  plaintiff  who 
uas  two  or  more  causes  of  action,  which  may  be  joined  in 
one  action,  should  be  compelled  to  so  join  them,  is  another 
illustration  of  the  same  general  principle.  If  under  such 
circumstances  he  bring  several  actions,  he  may  be  forced 
to  consolidate  them  and  to  pay  the  costs  of  the  application 
for  such  consolidation. 

The  subject  of  joinder  may  be  considered  as  it  affects  dif- 
ferent/orms  and  different  rights  of  actions.^ 

With  respect  to  the  joinder  of  different  forms  of  actions, 
the  rule  originally  was  that  counts  in  the  same  form  of  , 
action  might  be  joined,  but  that  those  in  different  forms  of , 
actions  might  not.     And  this  resulted  from  the  fact  that  every 
proceeding  was  begun  by  an  original  writ  of  a  particular  form, 
which  also  determined  the  particular  form  of  the  action.     No 
action  could  be  grounded  on  two  original  writs,  nor  could 
one  writ  be  in  two  forms.      Consequently  only  such  counts 
could  be  joined  as  could  properly  be  grouped  under  one  and  the 
same  original  writ.     The  most  forcible  illustration  and  relic 
of  this  rule  is  the  fact  that  counts  in  debt  and  detinue  can  be 
joined,  because  at  the  outset  they  were  the  same  action  and 
were  covered  by  the  original  writ  in  debt.      This  continued 
to  be  the  case,  although  they  ultimately  separated  so  widely 
that  the  pleas  differed  in  the  respective  actions  as  did  also 

1  Chit,  PI.  179-188. 


110  COMMON-LAW   PLEADING. 

the  judgments  entered  in  them.     But  when  the  origin  of  the 
rule  was   forgotten,  in  consequence  of  the   many  cases   in 
which  original  writs  were  not  sued  out,  artificial  reasons 
;  were  invented  to  account  for   its  continuance.      It  is  said 
!  that  wherever  two   counts  admit  of  the  same  plea  and  the 
Lgame  judgment,  they  may  be  joined.       But  this  is  a  very 
imperfect  expression  of  the  rule,  for   in  an  action  of   debt 
counts  may  be  joined  upon  records,  upon  contracts  under  seal, 
and  upon  simple  contracts ;  yet  these  counts  require  three 
different  pleas.     The  old  rule  is  the  simplest  in  statement 
I  and  the  most  universal ;  all  counts  or  forms  of  actions  may 
I  be  joined  which  could  originally  have  been  included  under 
one  original  writ.     But  it  must  be  restrained  in  the  follow- 
ing particular.     After  the  action  on  the  case  so  developed 
\  as  to  include  assumpsit  which  sounded  in  contract,  and  trover 
\or  case  generally,  which  sounded  in  tort,  the  courts,  applying 
the  reason  of  the  rule,  held  that  counts  which  sounded  in 
!  contract  could  not  be  joined  with  counts  which  sounded  in 
^tort. 

Thus  in  assumpsit  the  plaintiff  may  join  as  many  counts  as 
he  has  causes  of  action  upon  an  express  or  an  implied  simple 
contract  or  upon  a  quasi-Q,ontvQ.(it.  And  this  principle  is 
true  generally  of  each  form  of  action.  So  debt  on  bond,  on 
judgment,  on  a  statute,  and  on  a  simple  contract  may  all  be 
joined  in  one  action.  So  several  distinct  trespasses  may  be 
joined  in  the  same  declaration.  And  several  causes  of  action 
in  case  may  be  joined  with  trover. 

/  But  actions  in  form  ex  contractu  can  not  be  joined  with 
those  in  form  ex  delicto.  Thus  debt  can  not  be  joined  with 
trespass,  nor  covenant  with  trover.  Nor  can  different  forms 
of  actions,  whether  the  same  be  on  contract  or  for  tort,  be 
joined ;  thus  debt  can  not  be  joined  with  covenant,  trespass 
with  case,  assumpsit  with  trover. 

Coming  now  to  consider  the  joinder  of  different  rights  of 
action,  we  find  the  rule  to  be  this :  where  the  same  form  of 
action  may  be  adopted  for  several  distinct  injuries,  the 
plaintiff  may  generally  proceed  for  all  in  one  action,  though 
the  several  rights  affected  were  derived  from  different  titles. 


OP   THE   JOINDER   AND    ELECTION    OP   ACTIONS.  Ill 

Thus,  in  the  case  of  a  surviving  partner,  a  demand  by  or 
against  him  as  partner  may  be  joined  with  a  demand  due  in 
his  own  right.  So  an  executor  or  administrator  may  declare 
as  such  for  money  paid  by  him  in  that  character,  and  may 
join  such  count  with  counts  on  promises  to  the  testator  or 
intestate. 

But  a  person  can  not  in  the  same  action  join  a  demand  in 
his  own  right  and  a  demand  in  autre  droit  (in  another  right) ; 
thus  an  executor  or  administrator  can  not  join  claims  made 
in  his  representative  with  claims  made  in  his  personal  char- 
acter. So,  in  an  action  against  an  executor  or  administrator, 
a  count  can  not  be  introduced  which  would  charge  him  per- 
sonally, for  the  judgment  in  the  one  case  would  be  de  botiis 
testatoris  (from  the  testator's  goods),  and  in  the  other  de  bonis 
propriis  (from  his  own  goods). 

The  consequences  of  a  misjoinder  of  forms  of  actions  are 
serious.  However  perfect  in  form  each  count  may  be,  yet 
if  they  be  improperly  joined  the  declaration  will  be  bad  on 
a  general  demurrer,  or  in  arrest  of  judgment,  or  upon  writ  of 
error.  A  demurrer  for  misjoinder  must  be  to  the  whole 
declaration. 

Under  the  modern  latitude  as  to  amendments,  a  mis- 1 
joinder  could,  before  verdict,  be  cured  by  entering  a  nolle 
prosequi  (unwilling  to  pursue)  upon  one  or  more  counts. 
But  after  a  general  verdict  for  damages,  and  judgment 
entered  thereon,  the  judgment  would  even  now  have  to  be 
arrested,  for  the  court  could  not  say  on  what  count  or  counts 
the  jury  assessed  the  damages. 

Election  op  Actions. 

In  certain  cases  the  party  injured  has  the  right  to  elect 
one  of  several  remedies  for  the  same  injury.^  The  proper 
exercise  of  this  right  may  be  a  matter  of  great  importance 
to  his  interests.  What  are  the  considerations  which  should 
govern  him  in  making  his  election? 

(1)  In  some  actions  the  plaintiff  may  recover  upon  a  mere 
naked  possession  of  the  thing  affected,  while  in  others  a  strict 

1  Chit.  PI.  188-194. 


112  COMMON-LAW   PLEADING. 

legal  title  is  essential.  Therefore  where  the  title  of  the 
plaintiff  is  doubtful,  he  should  choose  the  remedy  requiring 
only  proof  of  possession;  e.  g.  trespass,  and  not  ejectment. 
So  where  a  person's  property  has  been  taken  away  or 
withheld  from  him,  he  may  generally  waive  the  tort  and 
sue  in  assumpsit  for  the  value;  but  it  will  not  be  advisable 
to  do  this  if  he  can  not  clearly  establish  his  title  to  the 
property,  as  he  must  do  in  assumpsit,  whereas  bare  posses- 
sion is  generally  sufficient  to  sustain  an  action  of  trover  or 
trespass. 

(2)  In  an  action  on  contract,  if  a  person  who  ought  to  be 
made  co-plaintiff  be  omitted,  it  is  a  ground  of  non-suit 
(except  in  the  case  of  persons  suing  in  autre  droit),  whereas 
in  tort-actions  such  non-joinder  can  only  be  pleaded  in  abate- 
ment. Again,  in  contract-actions  the  joinder  of  too  many 
defendants  is  a  ground  of  non-suit,  and  the  omission  of  a 
necessary  defendant  may  be  pleaded  in  abatement ;  whereas 
in  tort-actions,  where  the  offence  may  in  the  eye  of  the  law 
have  been  committed  by  several,  the  joinder  of  too  many 
defendants  will  be  no  ground  of  objection,  and  the  omission 
of  a  party  jointly  concerned  in  committing  the  injury  can 
not  generally  be  pleaded  in  abatement.  Therefore,  in  many 
cases  of  uncertainty  as  to  how  many  persons  should  be  made 
plaintiffs  or  defendants,  it  may  be  advisable  to  declare  in 
case  rather  than  in  assumjjsit.  The  following  judgment  ^  of 
Lord  Ellenborough  explains  the  advantages  arising  in  many 
instances  from  the  adoption  of  the  action  on  the  case,  in  pref- 
erence to  the  action  of  assumpsit :  "  There  is  no  inconven- 
ience in  suffering  the  party  to  allege  his  gravamen  as  a  breach 
of  duty,  arising  out  of  an  employment  for  hire,  and  to  con- 
sider that  breach  of  duty  as  tortious  negligence,  instead  of 
considering  the  same  circumstances  as  forming  a  breach  of 
promise  implied  from  the  same  consideration  of  hire ;  by 
allowing  it  to  be  considered  in  either  way,  according  as  the 
neglect  of  duty  or  the  breach  of  promise  is  relied  upon  as  the 
injury,  a  multiplicity  of  actions  is  avoided ;  and  the  plaintiff, 
according  as  the  convenience  of  his  case  requires,  frames  his 
1  Govett  V.  Radnidge,  3  East,  70. 


OP   THE   JOINDER   AND   ELECTION   OF   ACTIONS.  113 

principal  count  in  such  a  manner  as  either  to  join  a  count 
in  trover  therewith,  if  he  have  another  cause  of  action  other 
than  the  action  of  assumpsit,  or  to  join  with  the  assumpsit 
the  common  counts,  if  he  have  another  cause  of  action  to 
which  they  are  applicable ;  and  other  advantages  ensue  from 
the  adoption  of  case  instead  of  assumpsit,  viz.  that  in  the 
former  action,  the  defendant  can  not  plead  in  abatement  the 
non-joinder  of  other  parties  as  defendants;  and  the  plain- 
tiff will  recover,  if  he  prove  one  of  several  defendants  to 
be  liable." 

(3)  Where  the  plaintiff  has  several  demands,  recoverable 
in  different  forms  of  actions,  he  may  and  frequently  ought  to 
declare  for  all  in  one  action.  Thus,  in  case  of  neglect  by  a 
bailee,  the  bailor  may  proceed  against  him  either  in  assump- 
sit for  violating  his  implied  contract  to  keep  safely,  or  in 
tort  for  negligence.  But  if  he  have  also  at  the  same  time  a 
money  demand  against  the  bailee,  he  should,  to  prevent 
multiplicity  of  suits,  declare  for  both  causes  of  action  in 
assumpsit ;  if,  on  the  other  hand,  the  second  cause  of  action 
be,  for  example,  trover,  then  the  declaration  should,  for  the 
same  reason,  be  in  case. 

(4)  By  an  astute  and  somewhat  questionable  election  of 
remedy,  advantage  may  be  gained  in  depriving  an  adversary 
of  a  defence  which  he  might  otherwise  avail  himself  of. 
Thus,  a  bankrupt  may  plead  his  discharge  in  bar  of  an 
action  in  assumpsit  against  him  for  money  had  and  received, 
however  wrongfully,  by  him  before  his  bankruptcy ;  but  by 
declaring  in  case  or  trover,  he  is  prevented  from  using  this 
defence.  So  a  set-off  can  be  pleaded  in  assumpsit,  but  not 
in  case.  In  cases  of  fraud  the  statute  of  limitations  may  not 
begin  to  run  until  the  fraud  is  discovered,  and  therefore  in 
such  instances  the  assumpsit  should  be  waived  and  suit 
brought  in  tort  for  the  fraud.  By  a  judicious  election  the 
defendant  may  be  compelled,  either  to  take  issue  upon  some 
particular  allegation  in  the  declaration  (instead  of  putting 
the  plaintiff  to  prove  his  whole  case),  or  to  plead  his  ground 
of  defence  specially.  Thus,  in  covenant  for  rent,  the  de- 
fendant must  plead  to  some  particular  allegation,  for  there 

8 


114  COMMON-LAW   PLEADING. 

is  no  general  issue  in  covenant ;  ^  but  in  debt  on  a  lease  the 
defendant  can  plead  the  general  issue  of  nil  debet,  and  thus 
compel  the  plaintiff  to  prove  the  whole  of  his  declaration. 
So,  trespass  is  generally  preferable  to  case,  for  under  the 
general  issue  of  not  guilty  in  the  latter  the  defendant  may 
not  only  dispute  the  averments  of  the  declaration,  but  may 
give  in  evidence  matters  of  defence,  which  in  trespass  he 
would  be  compelled  to  plead  specially. 

(5)  In  some  cases  the  party  injured  may  have  his  choice 
between  a  local  action  (one  which  can  only  be  brought  in  the 
county  where  it  arose),  and  a  transitory  action  (which  may 
be  brought  in  any  jurisdiction  where  the  defendant  is  found). 
Thus  debt  for  rent  by  the  assignee  or  devisee  of  the  lessor 
against  the  lessee  is  local;  but,  upon  an  express  covenant  to 
pay  rent,  the  action  of  covenant  may  be  maintained  between 
the  same  parties,  and,  as  this  action  is  transitory,  it  should 
be  chosen  where  it  is  desired  to  try  the  cause  out  of  the 
county  where  the  land  is  situated. 

(6)  It  was  a  rule  of  the  common  law  that  when  a  tort- 
feasor (wrong-doer)  died,  the  cause  of  action  against  him 
died  with  him.  Hence  trover  could  not  be  maintained 
against  the  personal  representative  of  one  who  had  wrong- 
fully seized  and  converted  goods.  But  the  owner  of  the 
goods  could  waive  the  wrong,  and  sue  the  personal  represen- 
tatives of  the  wrong-doer  for  the  value  of  the  goods,  as  for 
money  had  and  received  by  him  in  his  lifetime  for  the  use  of 
the  plaintiff. 

(7)  An  infant  is  liable  for  his  tort ;  but  where  it  is  too 
closely  connected  with  his  contract,  as  for  instance  when  he 
obtains  credit  through  his  false  statement  as  to  his  majority, 
he  is  not  liable ;  a  husband  and  wife  are  liable  for  the  wife's 
tort,  subject  to  the  same  limitation.  A  lunatic  is  liable  for 
his  tort.  Hence,  where  it  can  be  done,  such  persons  may 
be  sued  in  tort,  the  contract  being  waived. 

(8)  The  nature  and  amount  of  damages  recoverable  in 
different  actions  is  an  important  consideration  in  this  con- 
nection.    It  is  generally  held  in  the  United  States  that  a 

1  Stephen  contradicts  this  statement ;  see  post,  242,  text  and  note  2. 


OF   THE   JOINDER   AND   ELECTION   OP   ACTIONS.  115 

passenger  injured  by  a  common  carrier  can  sue  in  assumpsit 
upon  the  breach  of  the  contract  to  carry  safely,  or  in  case 
for  negligence  in  not  carrying  safely.  By  suing  in  tort,  the 
plaintiff  may  obtain  the  benefit  of  a  different  rule  of  dam- 
ages, for  he  may  recover  more  remote  and  consequential 
damages  than  in  assumpsit,  and,  in  a  proper  case,  even 
punitive  or  exemplary  damages.  Again,  it  may  be  more 
profitable  to  replevy  an  article  wrongfully  taken,  whose 
value  has  been  increased  by  labor  done  upon  it  since  its 
taking,  than  to  sue  in  trespass  for  its  unlawful  caption  and 
asportation,  or  in  trover  for  its  value.  So  the  owner  of 
land,  whose  trees  have  been  cut  down,  and'  carried  off  after 
a  prolonged  severance,  by  a  trespasser,  may  sue  the  wrong- 
doer in  trespass  quare  clausum  fregit  or  de  bonis  asportatis, 
or  he  may  waive  the  tort  and  sue  for  the  value  of  the  trees 
in  assumpsit,  and  in  each  case  a  different  measure  of  damages 
would  be  applied.  It  must  be  borne  in  mind  by  the  student 
that  not  every  tort  can  be  waived,  and  yet  support  an 
assumpsit.  Thus  a  mere  trespasser  cannot  be  sued  for  use 
and  occupation  of  land,  nor  can  one  in  adverse  possession 
of  land  be  so  sued. 

(9)  In  some  jurisdictions  stringent  process  exists  against 
defendants  in  tort-actions.  The  plaintiff  may  avail  himself 
of  this  by  waiving  his  contract  and  suing  in  tort,  where  he 
may  properly  do  so. 

(10)  In  debt  the  judgment  by  nil  dicit,  or,  generally,  on 
default,  is  final,  and  execution  may  be  taken  out  at  once 
without  the  expense  and  delay  of  an  inquisition  to  assess 
damages,  as  is  required  in  assumpsit  or  covenant. 

Where  a  party  has  elected  one  form  of  action,  he  may 
nevertheless  abandon  it,  and  after  duly  discontinuing  it,  he 
may  resort  to  another.  But,  where  there  are  two  inconsis- 
tent remedies,  he  is  bound  by  his  election,  and  cannot  after- 
wards change  his  form  of  action.^ 

1  Robb  V.  Vos,  155  U.  S.  13.  Encyclopaedia  of  Pleading  and  Practice, 
VII.  364. 


CHAPTER    V. 

PARTIES  TO  ACTIONS. 

It  is  observed  by  Chitty  that  there  are  no  rules  connected 
with  the  science  of  pleading  so  important  as  those  which  re- 
late to  the  persons  who  are  to  be  the  parties  to  the  action ;  for,  if 
there  be  any  mistake  in  this  respect,  the  plaintiff  is,  generally, 
compellable  to  abandon  his  suit,  and  to  proceed  de  novo,  after 
having  incurred  great  expense.^ 

While  the  modern  license  of  amendment  has  interfered  to 
prevent  the  sacrifice  of  the  particular  suit  through  an  error  in 
this  respect,  yet  it  still  remains  true  that  this  subject  is  of 
prime  importance.  Certainly  the  litigating  parties  should  be 
the  proper  parties  and  only  those. 

It  is  thought  that  the  doctrine  of  the  law  upon  this  sub- 
ject has  been  best  stated  in  the  following  rules,  formulated 
by  Dicey  in  his  excellent  "  Treatise  on  the  Rules  for  the 
Selection  of  the  Parties  to  an  Action."  It  has  been  found 
that  this  clear,  formal,  and  concise  treatment  of  the  matter 
impresses  itself  upon  the  attention  and  memory  of  the  student, 
and  enables  him  to  more  thoroughly  understand  the  radical 
principles  underlying  the  rules  themselves. 

DICEY'S   KULES   FOR   THE   SELECTION^   OF  THE 
PARTIES  TO  AN  ACTION. 

THE   PERSONS    WHO    CAN   SUE   AND    BE   SUED. 

Rule  1.  All  persons  can  sue  and  are  liable  to  be  sued  in  an 

action  at  law. 

Exception  1.  Felons,  outlaws,  and  alien  enemies 

cannot  sue. 
Exception  2.  The  sovereign,    foreign   sovereigns 
and  ambassadors  can  not  be  sued. 
1  Chit.  PI.  1. 


PARTIES   TO    ACTIONS.  117 

GENERAL   RULES    APPLICABLE   TO    ALL   ACTIONS. 

Rule  2.  No  action  can  be  brought  except  for  the  infringe- 

ment of  a  right. 
Rule  3.  No  action  can  be  brought  except  for  the  infringe- 

ment of  a  common-law  right. 

Subordinate  rule.  "Where  one  person  has  a  legal 
and  another  an  equitable  interest  in  the  same 
property,  any  action  in  respect  of  such  prop- 
erty must  be  brought  by  the  person  who  has 
the  legal  interest. 
Rule  4.  An  action  may  be  brought  for  every  infringement 

of  a  "  legal "  right. 

Exception  1.   Where  an  injurious  act  amounts  to 
a  public  nuisance,   unless  the  plaintiff   has 
suffered  from  it  particular  damage. 
Exception  2.    Where  the  wrong  done  amounts  to 
a  felony,  until  the  felon  has  been  prosecuted. 
Rule  5.  The  same  person  can  not  be  both  plaintiff  and  de- 

fendant. 
Rule  6.  The  right  to  bring  an  action  cannot  be  transferred 

or  assigned. 
Rule  7.  No  person  can  be  sued  who  has  not  infringed  upon 

the  right  in  respect  of  which  the  action  is  brought. 
Rule  8.  Every  person  can  be  sued  who  infringes  upon  the 

right  of  another. 
Rule  9.  The  liability  to  be  sued  cannot  be  transferred  or 

assigned. 

ACTIONS    ON   CONTRACT  —  PLAINTIFFS  —  GENERAL   RULES. 

Rule  10.  No  one  can  sue  for  the  breach  of  a  contract  who  is 

not  a  party  to  the  contract. 
Rule  11.  The  person  to  sue  for  the  breach  of  a  simple  con- 

tract must  be  the  person  from  whom  the  consideration 
for  the  promise  moves. 

Exception  1.    Actions  by  a  person  appointed  by 

statute  to  sue  on  behalf  of  others. 
Exception  2.   Actions  which  can  be  brought  either 

by  a  principal  or  an  agent. 
Exception  3.    Some  actions  for  money  had  and 
received. 
Rule  12.  The  person  to  sue  for  the  breach  of  a  contract  hy 

deed  is  the  person  with  whom  the  contract  is  expressed 
by  the  deed  to  be  made  j  i.  e.,  the  covenantee. 


118 


COMMON-LAW   PLEADING. 


Subordinate  rule.   No  one  can  sue  on  a  covenant 
in  an  indenture  who  is  not  mentioned  among 
the  parties  to  the  indenture. 
Rule  13.  All  the  persons  with  whom  a  contract  is  made  must 

join  in  an  action  for  the  breach  of  it. 
Rule  14.  One  and  the  same  contract,  whether  it  be  a  simple 

contract  or  a  contract  by  deed,  can  not  be  so  framed  as 
to  give  the  promisees  or  covenantees  the  right  to  sue 
upon  it  both  jointly  and  separately. 
Rule  15.  The  right  to  bring  an  action  on  contract  can  not  be 

transferred  or  assigned. 

Exception  1.  Contracts  made  assignable  by  statute. 
Exception  2.    Contracts  or  choses  in  action   as- 
signable by  custom. 
Exception  3.    Assignment  of  a  debt  by  agreement 

of  all  the  parties. 
Exception  4.    Covenants  annexed  to  or  running 

with  estates  in  land. 
Excerption  5.    Assignment    by    marriage,    bank- 
ruptcy, and  death. ^ 
Rule  16.  The  right  of  action  on  a  contract  made  with  several 

persons  jointly  passes  on  the  death  of  each  to  the 
survivors,  and  on  the  death  of  the  last  to  his  repre- 
sentatives. 

Exception.   Covenants  with  tenants  in  common. 


PRINCIPAL    AXD    AGEXT. 

Rule  17.  A  contract  entered  into  with  a  principal  through 

an  agent  is  in  law  made  with  the  principal,  and  the 
principal,  not  the  agent,  is  the  proper  person  to  sue 
for  the  breach  of  it. 

'  Exception  1.   Where  an  agent  is  contracted  with 

by  deed  in  his  own  name. 
Exception  2.  Where  the  agent  is  named  as  a 
party  to  a  bill  of  exchange  or  other  commer- 
cial paper. 
Exception  3.  Where  the  right  to  sue  on  a  con- 
tract is,  by  the  terms  or  circumstances  of  it, 
expressly  restricted  to  the  agent. 

1  In    the    older    English    law    the  based    on    tort.      Its    application    has 

maxim  :    actio   personalis    moritur   cum  been  from  time  to  time  restricted   by 

persona    (a    personal   action    dies   with  statute.     Phillips  i'.  Homfrav,  1883,  24 

the    person),   was    of    general    applica-  Ch.  D.  439 ;    Finlay  v.  Chirney,   1888, 

tion  ;  it  extended  both  to  actions  based  20  Q.  B.  D.  494 ;  Pmcycloptedia  of  the 

upon  an  obligation  and  to  all  actions  Laws  of  England,  I.  105. 


PARTIES  TO   ACTIONS. 


119 


Rule  18. 


Rule  19. 


Exception  4.   Wliere  the  contract  is  made  with 
the  agent  himself ;    L  e.,  where  the  agent  is 
treated  as  the  actual  party  with  whom  the 
contract  is  made. 
Exception  5.   Where  the  agent  is  the  only  known 
or  ostensible  principal,  or  where  the  agent 
has  made  a  contract  not  under  seal  in  his  own 
name  for  an  undisclosed  principal. 
Exception  6.   Where  an  agent  has  made  a  con- 
tract, in  the  subject-matter  of  which  he  has 
a  special  interest  or  property. 
Exception  7.   Where  the  agent   has   paid   away 
money  of  the  principal's  under  circumstances 
which  gave  a  right  to  recover  it  back. 
A  person  who  enters  into  a  contract  in  reality  for 
himself,  but  apparently  as  agent  for  another  person, 
whom  he  does  not  name,  can  sue  on  the  contract  as 
principal. 

A  person  who  contracts,  in  reality  for  himself,  but, 
apparently,  as  agent  for  another  person,  whose  name 
he  gives,  can  not  sue  on  the  contract  as  principal. 


H 


PAETNEKS   AND    UNINCORPORATED    COMPANIES. 

Rule  20.  A  firm  or  an  unincorporated  company  can  not  sue  in 

its  name  as  a  firm  or  as  a  company,  but  must  sue  in 
the  names  of  the  individual  members  of  the  firm  or  of 
the  company. 

Exception  1.   Where  an  unincorporated  company 
is  empowered  by  statute  to  sue,  etc.,  in  the 
name  of  its  public  officer. 
Exception  2.   Where  an  unincorporated  company 
is  being  wound  up. 
Rule  21.  All  persons  who  are  partners  in  a  firm,  or  members 

of  an  unincorporated  company,  at  the  time  when  a 
contract  is  made  with  the  firm  or  the  company,  should 
join  in  an  action  for  the  breach  of  it. 

Excep)tion.  One  partner  must  or  may  sue  alone, 
on  contracts  made  with  him  on  behalf  of  the 
firm,  in  the  same  cases  in  which  an  agent 
must  or  may  sue  on  contracts  made  with  him 
on  behalf  of  his  principal. 
Rule  22.  One  partner  or  member  of  an  unincorporated  com- 

pany can  not  sue  another  upon  any  matter  involving 
the  accounts  of  the  partnership  or  company. 


120  COMMON-LAW  PLEADING. 

JExceptio7i  1.  Where  there  is  an  agreement  which, 
though  relating  to  partnership  business,  can 
be  treated  as  separate  and  distinct  from  other 
matters  in  question  between  the  partners. 
Exception  2.  Where  the  matters,  in  respect  of 
which  an  action  is  brought,  are  connected 
with  the  partnership  business  only  through 
the  wrongful  act  of  the  partner  sued. 
Rule  23.  Actions  for  breaches  of  contracts  made  with  a  firm 

must  be  brought : 

1.  On  the  bankruptcy  of  the  firm,  by  the  trustee  or 
trustees  of  the  bankrupts. 

2.  On  the  bankruptcy  of  one  or  more  partners,  by 
the  solvent  partners  together  with  the  trustee  or 
trustees  of  the  bankrupt  partner  or  partners. 

Rule  24.  On  the  death  of  a  partner,  the  surviving  partners 

and  ultimately  the  last  survivor,  or  his  representative, 
must  sue  on  contracts  made  with  the  firm. 

COKPOKATIONS    AND    INCORPORATED    BODIES. 

Rule  25.  A  corporation  or  incorporated  body  must  sue  in  its 

corporate  name. 
Rule  26.  A  corporation  or  incorporated  body  can  not  sue  on 

a  contract  not  under  seal. 

Exception  1.    Where  a  corporation  enters  into  a 
contract  concerning  matters  necessarily  inci- 
dental to  the  purposes  of  the  business  of  the 
corporation. 
Exception  2.    Where  the  contract  relates  to  acts  of 
trivial  importance  or  of  constant  recurrence. 
Exception  3.    Where  the   consideration   for   the 
contract  is  executed  on  the  part  of  the  cor- 
poration. 
Exception  4.    Where  there  is  a  contract  implied 

by  law. 
Excejytion  5.   Where  a  corporation  is  authorized 
by  statute  to  contract  otherwise  than  under 
seal. 
Rule  27.         A  corporation  or  incorporated  body  can  not  sue  on 

contracts  ultra  vires  (beyond  its  powers). 
Rule  28.  When  an  incorporated  company  is  in  the  course  of 

winding  up,  actions  on  behalf  of  such  company  are 
brought  and  continued  in  its  corporate  name  by  the 
official  liquidator. 


PARTIES   TO   ACTIONS.  121 

V  HUSBAND    AND    WIFE. 

Rule  29.  A  wife  cau  not  during  coverture  sue  without  her 

liusband.^ 

Exception  1.  Where  the  husband  is  civilly  dead. 
Excej}tion  2.    Where  the  husband  is  legally  pre- 
sumed to  be  dead. 
Exception  3.   Where  a  wife  has  a  "judicial  sepa- 
ration "  or  "  protection  order  "  under  statute. 
Exception  4.   Where  by  statute  a  wife  is  empow- 
ered to  sue  as  2^  feme  sole. 
Subordinate  rule.     A  husband  can  not  bring  an 
action  against  his  wife,  or  a  wife  against  her 
husband. 
Rule  30.  A  husband  and  wife  must  sue  jointly  in  two  cases : 

1.  On  contracts  made  by  the  wife  before  marriage. 

2.  On  contracts  in  which  the  wife  claims  as  execu- 
trix, or  administratrix. 

Rule  31.  A  husband  may  sue  either  alone  or  jointly  with  his 

wife  in  three  cases : 

1.  On  negotiable  instruments  (e.  g.^  bills  of  ex- 
change) given  to  his  wife  before  marriage. 

2.  On  contracts  made  after  marriage  with  his  wife 
alone. 

3.  On  contracts  made  after  marriage  with  himself 
and  his  wife. 

Rule  32.  The  following  are  the  results  of  errors  as  to  joinder 

of  parties  in  actions  by  husband  or  wife  : 

1.  If  a  husband  sues  alone  where  the  wife  must  be 
joined,  the  error  is  fatal. 

2.  If  a  wife  sues  alone  where  she  either  must  or 
may  be  joined,  the  only  result  is  to  expose  her  to  a 
plea  in  abatement. 

3.  If  a  husband  sues  with  his  wife  where  she  nei- 
ther must  nor  may  be  joined,  the  error  is  fatal. 

Rule  33.  Where  a  husband  is  bankrupt  and  the  trustee  in 

bankruptcy  sues  in  the  right  of  the  wife,  he  must  join 
the  wife  with  him  in  suing. 

BANKRUPT   AND    TRUSTEE. 

Rule  34.  The  trustee  of  the  property  of  a  bankrupt  must  sue 

for  the  breach  of  any  contract,  made  with  the  bank- 

1  For  the  law  upon  this  subject,  the  legislation  of  the  particular  jurisdiction 
must  be  consulted. 


122  COMMON-LAW  PLEADING. 

nipt  before  bankruptcy,  in  which  the  bankrupt  has 
both  a  legal  and  a  beneficial  interest. 

Exception  1.  Contracts,  the  breach  of  which  in- 
volves injury  to  the  person  or  to  the  feel- 
ings of  the  bankrupt, 
Excej^tion  2.  Contracts  uncompleted  at  the  time 
of  bankruptcy  in  which  the  personal  service 
of  the  bankrupt  is  of  the  essence  of  the  con- 
tract. 
Eule  35.  For  the  breach  of  any  contract  made  with  the  bank- 

rupt during  the  continuance  of  the  bankruptcy  (in 
which  the  bankrupt  has  both  a  legal  and  a  beneficial 
interest),  either  the  trustee  may  sue,  or  the  bankrupt 
may  sue,  if  the  trustee  does  not  interfere. 

Exception  1.  Contracts,  the  breach  of  which  in- 
volves injury  to  the  person  or  the  feelings  of 
the  bankrupt. 
Exception  2.  Contracts  to  pay  for  the  personal 
labor  of  the  bankrupt  performed  after  his 
bankruptcy. 
Rule  36.  Actions  on  contracts  made  with  the  bankrupt  after 

the  "  close  of  the  bankruptcy  "^  must  be  brought  by 
the  bankrupt. 
Rule  37.  All  the  trustees  must  join  in  suing. 

Rule  38.  On  the  removal,  retirement,  death,  etc.,  of  a  trustee 

his  rights  pass  to  and  vest  in  his  successor. 
Rule  39.  The  bankruptcy  of  a  plaintiff  does  not  cause  the 

action  to  abate. 
Rule  40.  If  an  action  be  brought  by  the  bankrupt  in  cases  in 

which  the  trustee  must  sue,  or  by  the  trustee  in  cases 
in  which  the  bankrupt  must  sue,  the  error  is  fatal. 

EXECUTORS,    ADMINISTRATORS,    AND    HEIRS. 

Rule  41.  The  personal  representatives  of  a  deceased  person 

(i.  e.,  his  executors  or  administrators)  can  sue  on  all 
contracts  of  whatever  description  made  with  him, 
whether  broken  before  or  after  his  death. 

Exception  1.  Contracts,  the  breach  of  which  oc- 
casioned merely  personal  suffering  to  the 
deceased. 

1  When  tlie  whole  property  of  the  make  an  order  that  the  bankruptcy 
bankrupt  has  been  realized  for  the  has  closed,  and  such  order  closes  the 
benefit  of  hia  creditors,  the  court  may    bankruptcy. 


PARTIES   TO   ACTIONS.  123 

Exception  2.  Contracts  limited  to  the  lifetime  of 
the  deceased. 

Exception  3.  Covenants  real  broken  during  the 
lifetime  of  the  deceased.^ 

Exception  4.  Contracts  on  which  the  deceased 
must  have  sued  jointly  with  other  persons. 

Subordinate  rule  1.  An  executor  can  commence 
an  action  before  probate;  but  an  adminis- 
trator can  not  commence  an  action  before 
letters  of  administration  granted  to  him. 

Subordinate  rule  2.    On  the  death  of  a  plaintiff 
the   action   can   be  carried  on  by  his  exec- 
utor or  administrator. 
Eule  42.  An  executor  or  administrator  : 

1.  Must  sue  in  his  representative  character  on  all 
contracts  made  with  the  deceased. 

2.  May  sue  either  in  his  representative  or  in  his 
personal  character  on  contracts  made  with  him  as 
executor  after  the  death  of  the  deceased. 

Subordinate  rule.   An  executor  or  administrator 
can  not  join  claims  made  in  his  representative 
with  claims  made  in  his  personal  character. 
Kule  43.  Co-executors  or  co-administrators  must  all  join  as 

plaintiffs  in  an  action. 

Exception  1.   Where  a  contract  is  made  with  some 

of  several  co-executors  only. 
Exception  2.    Where  an  executor  renounces  the 

executorship. 
Subordinate  rule.    One  co-executor  or  co-admin- 
istrator can    not  bring  an  action  against  an- 
other concerning  matters  connected  with  the 
executorship. 
Rule  44.  On  the  death  of  a  co-executor  or  co-administrator, 

his  rights  of  action  pass  to  the  survivors,  and  ulti- 
mately to  tlie  last  survivor. 
Rule  45.  The  executor  of  a  sole,  or  of  a  sole  surviving,  exec- 

utor represents  the  original  testator ;  but  the  admin- 
istrator of  an  executor  does  not  represent  the  testator, 

^  Covenants  real,  as  the  term  is  here  ancestor's  lifetime,  his  personal  repre- 

nsed,  mean  covenants  which  both  run  with  sentatives  may  sue  for  such  breach  in 

the  land  and  descend  to  the  heir  or  devisee,  respect  of  any  damage  caused  thereby 

i.  e.,  covenants  which  affect  the  freehold,  to  the  personal  estate.    Kingdon  v.  Not- 

But  where  there  has  been  a  substantial  tie,  1    M.   &  S.  355,  364 ;    Knights  v. 

breach  of  such  covenants   during   the  Quarles,  2  B.  &  B.  102,  105. 


124  COMMON-LAW   PLEADING. 

nor  does  tlie  administrator  of  an  administrator,  or  the 
executor  of  an  administrator  represent  the  original 
intestate. 

ACTIONS    ON    CONTRACT DEFENDANTS GENERAL    RrLES. 

Rule  46.  No  person  can  be  sued  for  a  breach  of  contract  who 

is  not  a  party  to  the  contract. 
Rule  47.  The  person  to  be  sued  for  the  breach  of  a  simj^le 

contract  is  the  person  who  promises  or  who  allows 
credit  to  be  given  to  him. 

Exception  1.    Actions  against  a  person  appointed 

by  statute  to  be  sued  on  behalf  of  others. 
Excejjtion  2.    Actions  on  some  contracts  implied 
by  law  or  actions  quasi  ex  contractu. 
Rule  48.  The  person  to  be  sued  for  the  breach  of  a  contract 

by  deed  is  the  person  by  whom  the  contract  is  ex- 
pressed by  the  deed  to  be  made,  i.  e.,  the  covenantor. 
Rule  49.  Where  several  persons  are  jointly  liable  on  a  con- 

tract, they  must  all  be  sued  in  an  action  for  the  breach 
thereof,  i.  e.,  joint  contractors  must  be  sued  jointly. 
Exception  1.   Where  a  co-contractor  has  become 

bankrupt. 
Exception  2.    Where  a  claim  is  barred  against  one 
or  more  joint  debtors,  and  not  against  others. 
Exception  3.    Where  a  co-contractor  is  resident 

out  of  the  jurisdiction. 
Excejjtion  4.    Where  an  action  is  brought  against 

common  carriers. 
Exception  5.    Where  an  action  is  brought  against 
a  firm,  some  of  the  members  of  which  are 
nominal  or  dormant  partners. 
Exception  6.    Where  a  co-contractor  is  an  infant 
or  a  married  woman. 
Rule  50.  Covenantors  and  other  contractors  may  be  at  once 

jointly  and  severally  liable  upon  the  same  covenant 
or  contract,  in  which  case  they  may  be  sued  either 
jointly  or  separately. 
Rule  51.  The  liability  to  an  action  on  contract  can  not  be 

transferred  or  assigned. 

Exception  1.    Where  there  is  a  change  of  credit 

by  an  agreement  between  all  the  parties. 
Exception  2.    Where  there  are  covenants  between 
lessor  and  lessee  which  run  with  the  land. 


PARTIES   TO    ACTIONS. 


125 


Rule  52.  The  liability  to  an  action  on  a  contract  made  by 

several  persons  jointly,  passes  at  the  death  of  each  to 
the  survivors,  and  on  the  death  of  the  last  to  his  rep- 
resentatives. 


PRINCIPAL   AND   AGENT. 

Rule  53.  A  contract  entered  into  by  a  principal,  through  an 

agent,  is  in  law  made  by  the  principal,  and  the  prin- 
cipal, not  the  agent,  is  the  person  to  be  sued  for  the 
breach  of  it. 

^Exception  1.    Where  an  agent  contracts  by  deed 

in  his  own  name. 

Exception  2.    Where   an  agent  draws,  indorses, 

or  accepts  a  bill  of  exchange  or  promissory 

note,  in  his  own  name. 

Exception  3.   Where  credit  is  given  exclusively 

to  the  agent. 
Excepjtion  4.    Where  an  agent  contracts  for  per- 
sons incapable  of  contracting. 
Exception  5.   Where  the  contract  is  made  by  the 
agent    himself,    %.   e.,    where   the   agent  is 
treated   as   the   actual   party  by  whom  the 
contract  is  made,  or  in  other  words,  where 
the  agent,  though  acting  as  such,  incurs  a 
personal  responsibility. 
Exception  6.   Where  the  agent  is  the  only  known 
or  ostensible  principal,  or  where  a  contract 
(not  under  seal)  has  been  made  by  an  agent 
in  his  own  name  for  an  undisclosed  principal. 
Exception  7.    Where  money  received  by  an  agent 
for  his  principal  has  been  paid  under  a  mis- 
take  of   fact,   or   obtained   by   means   of  a 
tort. 

Exception  8.    Where  an  agent  has  signed  certain 
contracts  on    behalf  of   a  limited   company 
without  using  the  word  "limited,"  in  which 
case  probably  only  the  agent  can  be  sued. 
Rule  54.  An   agent   who,  without  having  authority,  enters 

into  a  contract  on  behalf  of  a  principal,  can  not  him- 
self be  sued  on  the  contract,  but  is  otherwise  liable. 
Exception.   Where  the  authority  of  an  agent  has 
without  his  knowledge  expired  at  the  time 
of  his  making  the  contract. 


126  COMMON-LAW  PLEADING. 

PARTNERS   AND   UNINCORPORATED   COMPANIES. 

Rule  55.  A  firm  or  unincorporated  company  can  not  be  sued 

in  its  name  as  a  firm  or  as  a  company,  but  must  be 
sued  in  the  names  of  the  individual  partners  or  mem- 
bers composing  the  firm  or  company. 
Rule  56.  All  persons  who  are  partners  in  a  firm,  or  members 

of  an  unincorporated  company,  at  the  time  when  a 
contract  is  made  by  or  on  behalf  of  the  firm  or  com- 
pany, should  be  joined  in  an  action  for  the  breach 
of  it. 

Exception.  One  partner  must  or  may  be  sued 
alone,  on  contracts  made  by  him  on  behalf 
of  the  firm,  in  the  same  cases  in  which  an 
agent  must  or  may  be  sued  on  contracts  made 
by  him  on  behalf  of  his  principal. 
Rule  57.  Actions  on  contracts  made  by  a  firm  : 

1.  Can   not,  on   the  bankruptcy  of    the   firm,    be 
brought  either  against  the  trustee  or  (as  a  general 

"rule)  against  the  individual  partners.^ 

2.  Must,  on  the  bankruptcy  of  one  or  more  partners, 
be  brought  against  the  solvent  partner  or  partners. 

Rule  58.  On  the  death  of  a  partner,  the  surviving  partners, 

and  ultimately  the  last  survivor  or  his  representative, 
must  be  sued  on  contracts  made  with  the  firm. 

CORPORATIONS   AND   INCORPORATED   BODIES. 

Rule  59.  A  corporation  or  incorporated  body  must  be  sued 

in  its  corporate  name. 
Rule  60.  A  corporation  or  incorporated  body  can  not  be  sued 

on  a  contract  not  under  seal. 

Exception  1.    Where  a  corporation  contracts  con- 
cerning matters  necessarily  incidental  to  the 
purposes  or  business  of  the  corporation. 
Exception  2.    Where  the  contract  relates  to  mat- 
ters  of   trivial   importance   or   of    constant 
recurrence. 
Exception  3.    In  some  cases  of  an  implied  con- 
tract. 
Exception  4.    Where  a  corporation  is  authorized 
by  statute  to  contract  otherwise  than  under 
seal. 

1  The  remedy  is  by  proof  against  the    him  if  his  order  of  discharge  is  no  bar 
bankrupt's  estate,  or  by  action  against    to  the  claim. 


PARTIES   TO   ACTIONS.  127 

Rule  61.  A  corporation  or  incorporated  body  can  not  be  sued 

on  contracts  ultra  vires. 

Rule  62.  When  a  company  is  in  course  of  winding  up,  actions 

against  the  company  can  either  be  stayed,  or  can  not 
be  brought  without  leave  of  the  court. 

INFANTS. 

Rule  63.  An  infant  can  not  be  sued  on  any  contract  made  by 

him. 

Exception  1.    Contracts  for  necessaries. 

Exception  2.    Contracts  in  respect  of  permanent 

property  occupied  or  possessed  by  an  infant. 

Rule  64.  An   adult  {i.  e.,    a  person  of   or  over  twenty-one 

years  of  age)  can  not  be  sued  on  contracts  made  by 

him  during  infancy. 

Exception  1.   Contracts  on  which  an  infant  might 

be  sued. 
Exception  2.   Contracts  ratified  in  writing  ^  after 

full  age. 
Exception  3.    Contracts  connected  with  the  pos- 
session  of  permanent  property  and  not  re- 
pudiated after  full  age. 
Rule  65.  If  one  of  several  co-contractors  is  an  infant  and  the 

others  are  adults,  the  adults  alone  must  be  sued. 

HUSBAND   AND   WIFE. 

Rule  66.  A  wife  can  not  during  coverture  be  sued  alone. 

Exception  1.   Where  the  husband  is  civilly  dead. 

Exception  2.  Where  the  husband  is  legally  pre- 
sumed to  be  dead. 

Exception  3.  Where  a  wife  has  a  judicial  sepa- 
ration or  protection  order. 

Exception  4.  Where  the  husband  is  an  alien 
enemy. 

Exception  5.  Where  the  wife  is  permitted  by 
statute  to  be  sued  alone. 

Subordinate  rule.  A  wife  can  not  be  sued  by  her 
husband. 

1  Written  ratification  is  required  in    States;  here   a  ratification  in  writing 
England    by  9   Geo.   IV.   c.   14,  s.  ."i,    is  not  required, 
which  is  not  in   force  in  the  United 


128  COMMON-LAW  PLEADING. 

Eule  67.  A  husband  and  wife  must  be  sued  jointly  in  two 

cases,  sc.  : 

1.  On  contracts  made  by  the  wife  before  marriage. 

2.  On  contracts  on  which  a  claim  is  made  against 
the  wife  as  executrix  or  administratrix. 

Kule  68.  In  all  actions  brought  to  charge  a  husband  on  con- 

tracts made  by  his  wife  during  coverture,  the  husband 
must  be  sued  alone. 

Rule  69.  The  following  are  the  results  of  errors  in  joinder  of 

parties  in  actions  against  husband  or  wife  : 

1.  If  a  husband  is  sued  alone  where  his  wife  must 
be  joined,  the  error  is  fatal. 

2.  If  a  wife  is  sued  alone,  where  she  must  be  joined, 
the  only  result  is  to  expose  the  plaintiff  to  a  plea  in 
abatement. 

3.  If  a  husband  is  sued  jointly  with  his  wife,  where 
he  ought  to  be  sued  alone,  the  error  is  fatal  unless 
amended. 

BANKRUPT    AND    TRUSTEE. 

Rule  70.  A  bankrupt  can  not,  after  his  discharge,  be  sued  on 

contracts  made  before  bankruptcy. 

Mcception  1.   Debts  or  liabilities  held  not  to  be 

provable  by  the  court  of  bankruptcy. 
Exception  2.    Debts  or  liabilities  contracted  after 
notice  to  the  creditor  of  an  act  of  bankruptcy. 
Exception   3.    Debts   or   liabilities   incurred  by 

means  of  fraud  or  breach  of  trust. 
Exception  4.    Debts    or    liabilities    whereof  the 
bankrupt  has  obtained  forbearance  by  fraud. 
Exception  5.    Debts  due  to  the  Crown. 
Exceptio7i   6.    Debts    with  which   the   bankrupt 
stands    charged    for   an    offence    against   a 
statute  relating  to  any  branch  of  the  public 
revenue,  or  at  the  suit  of  the  sheriff  or  other 
public  officer  on  a  bail  bond,  entered  into  for 
the  appearance  of  any  person  prosecuted  for 
any  such  offence. 
Rule  71.  An  undischarged  bankrupt  remains  liable  on  con- 

tracts made  by  him  before  bankruptcy. 
Rule  72.  The  trustee  can  be  sued  as  a  trustee  on  contracts 

entered  into  by  him  in  his  character  as  a  trustee. 


PARTIES  TO   ACTIONS.  129 

EXECUTORS,    ADMINISTRATORS,    AND    HEIRS. 

Eule  73.  The  personal  representatives  of  a  deceased  person 

(i.  e.,  his  executors  or  administrators)  can  be  sued  on 
all  contracts  made  with  him,  whether  broken  before 
or  after  his  death. 

£Jxception  1.   Contracts  limited  to  the  lifetime  of 

the  deceased. 
Exception  2.    Covenants  in  law  ^  not  broken  during 

the  lifetime  of  the  deceased. 
Exception  3.    Contracts   on   which  the  deceased 
must    have    been   sued  jointly  with    other 
persons. 
Subordinate  rule  1.    An  action  can  be  commenced 
against  an  executor  before  probate,  but  an 
action  can  not  be  commenced  against  an  ad- 
ministrator before  letters  of  administration 
granted  to  him. 
Subordinate  rule  2.   On  the  death  of  a  defendant 
the   action   may   be  carried  on  against  his 
executor  or  administrator. 
Rule  74.  An  executor  or  administrator  must  be  sued  in  his 

representative  character;  i.  e.,  as  executor  or  admin- 
istrator, on  all  contracts  made  by  the  deceased. 
Rule  75.  An  executor  or  administrator  must  be  sued  in  his 

personal  character  on  contracts  made  by  himself. 

Exception.    Contracts  made  by  executor  distinctly 

as  executor. 
Subordifiate  rule.  In  an  action  against  an  exec- 
utor or  administrator,  claims  made  against 
him  in  his  representative  character  cannot 
be  joined  with  claims  made  against  him  in 
his  personal  character. 
Rule  76.  All  co-executors  or  co-administrators  who  have  ad- 

ministered, should  be  joined  as  defendants  in  an  action. 

^  Certain  covenants  are  annexed  by  nant  on  either  point,  in  which  case  no 

the  law  to  the  use  of  certain  expressions,  implication    can    be   raised   from   such 

Whenever,  for  example,  certain  terms  words.      Such    implied    contracts    are 

are  used  in  a  lease,  it  is  inferred,  as  a  limited  to  the  duration  of  the  lessor's 

matter  of  law,  that  the   person  using  estate,  and   cease  upon   its  determina- 

them    enters    into    certain    covenants,  tion.     No  action  lies  against  an  execu- 

Thus  under  a  lease  by  deed,  the  word  tor    or    administrator    upon    such    a 

demise  or  let,  or  any  equivalent  words  covenant  at  law  which   is  not   broken 

sufficient  to  constitute  a  lease,  import  a  until  after  the   death  of  the  testator, 

covenant  for  title  and  for  quiet  enjoy-  2  Williams    on    Executors    (6th   ed.), 

ment,  unless  there  be  an  express  cove-  1752.* 

9 


130  COMMON-LAW   PLEADING. 

Kule  77.  The  heir  may  be  sued  on  contracts  of  the  deceased 

in  three  cases,  sc.  : 

1.  On  contracts  by  deed  in  which  the  ancestor  ex- 
pressly binds  himself  and  his  heirs. 

2.  On  contracts  of  record. 

3.  On  covenants  real. 

Subordinate  rule  1.    A  devisee  is  liable  under  the 

same  circumstances   under  which  the   heir 

would  be  liable. 
Subordinate  rule  2.   In  no  case  can  an  executor 

or   administrator  be  sued  together  with   an 

heir  or  devisee. 

ACTIONS    FOR    TORT PLAINTIFFS  GENERAL    RULES. 

Rule  78.  No  one  can  bring  an  action  for  any  injury  which  is 

not  an  injury  to  himself. 
Rule  79.  The  person  who  sustains  an  injury  is  the  person  to 

.  bring  an  action  for  the  injury  against  the  wrong-doer. 

Subordinate  rule  1.  The  person  to  sue  for  any  in- 
terference with  the  immediate  enjoyment  or 
possession  of  land  or  other  real  property  is 
the  person  who  has  possession  of  it,  and  no 
one  can  sue  merely  for  such  an  interference 
who  has  not  possession. 

Subordinate  rule  2.  For  any  permanent  injury  to 
the  value  of  land,  or  other  real  property,  i.  e., 
for  any  act  which  interferes  with  the  future 
enjoyment  of,  or  title  to,  the  land,  an  action 
may  be  brought  by  the  person  entitled  to  a 
future  estate  in  it,  i.  e.,  by  the  reversioner. 

Subordinate  rule  3.  Any  person  may  sue  for  an 
interference  with  the  possession  of  goods, 
who,  as  against  the  defendant,  has  a  right  to 
the  immediate  possession  of  such  goods  ;  and 
no  person  can  sue  for  what  is  merely  an  in- 
terference who  has  not  a  right  to  the  imme- 
diate possession  of  the  goods. 

Subordinate  ride  4.  Any  person  entitled  to  the 
reversionary  interest  in  goods  {i.  e.,  the  re- 
versioner) may  bring  an  action  for  any  dam- 
age to  such  interest,  or,  in  other  words,  to 
his  right  of  ultimate  possession. 
Rule  80.  1-    Persons  who  have  a  separate  interest  and  sus- 

tain a  separate  damage  must  sue  separately. 


PARTIES  TO   ACTIONS.  131 

2.  Persons  who  have  a  separate  interest,  but  sus- 
tain a  joint  damage,  may  sue  either  jointly  or  sepa- 
rately in  respect  thereof. 

3.  Persons  who  have  a  joint  interest  must  sue 
jointly  for  an  injury  to  it. 

Rule  81.  "fhe  right  of  action  for  a  tort  cannot  be  transferred 

or  assigned. 

Rule  82.  Where  several  persons  have  a  joint  right  of  action 

for  a  tort  it  passes  on  the  death  of  each  to  the  sur- 
vivors, and  on  the  death  of  the  last  (if  the  right  of 
action  be  one  that  survives)  to  his  representatives. 

PRINCIPAL    AND    AGENT. 

Rule  83.  A  principal  (or  employer)  can  never  sue  for  what 

is  merely  an  injury  to  his  agent  (or  servant),  nor  an 
agent  (or  servant)  for  what  is  merely  an  injury  to  his 
principal  (or  employer). 

PARTNERS. 

Rule  84.  All  the  partners  in  a  firm,  or  members  of  an  unin- 

corporated company,  should  join  in  an  action  for  a 
wrong  done  to  the  firm  or  company. 

Rule  85.  An  action  for  an  injury  to  the  property  of  a  firm 

must  be  brought : 

1.  On  the  bankruptcy  of  the  firm,  by  the  trustee  or 
trustees  of  the  bankrupts. 

2.  On  the  bankruptcy  of  one  or  more  partners,  by 
the  solvent  partners,  together  with  the  trustee  or 
trustees  of  the  bankrupt  partner  or  partners. 

HUSBAND    AND    WIFE. 

Rule  86.  A  husband  and  wife  must  sue  jointly  in  three  cases : 

1  For  injuries  to  the  person,  character,  or  property 
of  the  wife,  committed  before  marriage. 

2.  For  injuries  to  the  person  or  character  of  the 
wife  committed  during  coverture ;  and 

3.  For  injuries  for  which  the  wife  must  sue  as  ex- 
ecutrix or  administratrix. 

Rule  87.  A  husband  may  sue  either  alone  or  jointly  with  his 

wife  for  all  injuries  done  di;ring  coverture  to  real 
property,  of  which  the  husband  and  wife  are  seised, 
or  to  which  they  are  entitled  in  right  of  the  wife. 

Exception.   Where  a  permanent  injury  is  done  to 
the  wife's  freehold. 


132  COMMON-LAW   PLEADING. 

Rule  88.  The  husband  must  sue  alone  in  respect  of  any  in- 

juries to  personal  property  committed  during  cover- 
ture. 

BANKRUPT    AXD    TRUSTEE. 

Rule  89,  The  trustee  and  not  the  bankrupt  must  sue  for  in- 

juries to  the  real  or  personal  property  of  the  bankrupt 
committed  before  the  bankruptcy. 

Exception.   Trespass  to  land  before  bankruptcy. 

Rule  90.  For  injuries  to  property  acquired  by  the  bankrupt 

after  bankruptcy,  either  the  trustee  may  sue  or  the 
bankrupt  may  sue  if  the  trustee  does  not  interfere. 

Rule  9L  The  bankrupt  alone  can  sue  for  injuries  to  his  per- 

son, feelings,  or  reputation. 

EXECUTORS    AND    ADMINISTRATORS. 

Rule  92.  The  personal  representatives  of  the  deceased  {i.  e., 

•his  executors  or  administrators)  can  sue  for  injuries 
to  the  property  of  the  deceased  done  dui'ing  his  life- 
time. 

Rule  93.  The  personal  representatives  of  the  deceased  can 

not  sue  for  injuries  to  the  person,  feelings,  or  reputa- 
tion of  the  deceased. 

Excejjtion.   Where  deceased  has  been  killed  by 
wrongful  act  or  by  negligence. 

Rule  94.  The   personal  representatives  of  the  deceased  can 

sue  for  injuries  to  his  personal  property  committed 
after  his  death. 

Rule  95.  The  real  representative  of  the  deceased  {i.  e.,  his 

heir  or  devisee)  can  not  sue  for  any  wrong  done  to 
him. 

ACTIONS    FOR    TORT DEFENDANTS GENERAL    RULES. 

Rule  96.  No  person  is  liable  to  be  sued  for  any  injury  of 

which  he  is  not  the  cause. 
Rule  97.  A.^iy  person  who  causes  an  injury  to  another  is  lia- 

ble to  be  sued  by  the  person  injured. 

Exception.    Where   persons  are  protected  from 
actions  for  torts  by  their  positions,  e.  g.,  a 
judge. 
Rule  98.  One,  or  any,  or  all  of  several  joint  wrong-doers  may 

be  sued. 

Exception.   Persons  sued  as  joint  owners  of  land. 


PAETIES   TO   ACTIONS.  133 

Rule  99.  The  liability  to  be  sued  for  a  tort  can  not  be  trans- 

ferred or  assigned. 

Exception.   Assignment  by  death. 

Rule  100.  Each  wrong-doer's  separate  liability  to  be  sued  for 

a  tort  passes  on  his  death  (if  it  survives  at  all)  to  his 
personal  representatives.  The  joint  liability  of  sev- 
eral wrong-doers  passes  on  the  death  of  each  to  the 
survivors. 

PRINCIPAL   AND    AGENT. 

Rule  101  A  principal  is  liable  to  be  sued  for  the  torts  of  an 

agent  either  committed  by  the  command  of  the  prin- 
cipal, or  subsequently  assented  to  or  ratified  by  him. 
Rule  102.  An  employer  or  master  is  liable  to  be  sued  for  the 

torts  of  his  servant  if  committed  in  the  course  of  the 
servant's  employment,  and  for  his  master's  benefit,  or 
in  other  words,  in  the  service  of  his  master. 

Exception  1.    Where  the  servant  is  injured  by  a 

fellow- servant. 
Exception  2.   Where  the  master  is  compelled  by 

statute  to  employ  a  particular  person. 
Exceptio7i  3.    Where   the   employer  is  a   public 
officer  under  government. 
Rule  103.  A  servant  or  other  agent  is  liable  to  the  person 

wronged  for  acts  of  misfeasance,  or  positive  wrong, 
in  the  course  of  his  employment,  but  not  for  acts  of 
non-feasance,  or  mere  omission. 

Subordinate  rule.  An  action  for  tort  may  be 
brought  either  against  the  principal  or  against 
the  immediate  actor  in  the  wrong,  but  can  not 
be  brought  against  an  intermediate  agent. 

PARTNERS. 

Rule  104.  One,  or  any,  or  all  of  the  partners  in  a  firm,  or  mem- 

bers  of   an    unincorporated    company,  may  be  sued 
jointly  for  a  wrong  committed  by  the  firm  or  company. 
Exception.    Where  partners  are  sued  as  co-owners 
of  land. 

CORPORATIONS. 

Rule  105.  A  corporation  or  incorporated  body  can  be  sued 

for  torts. 


134  COMMON-LAW   PLEADING. 

INFANTS. 

Rule  106.  An  infant  may  be  sued  for  torts  committed  by  him. 

Exception.   Where  his  fraud  is  closely  connected 
with  a  contract. 

HUSBAND    AND    WIFE. 

Rule  107.  A  husband  and  wife  must  be  sued  jointly  for  all 

torts  committed  by  the  wife  either  before  marriage 
or  during  coverture. 

Exception.  Where  her  fraud  is  closely  connected 
with  a  contract. 

BANKRUPT    AND    TRUSTEE. 

Rule  108.  A  bankrupt  can  be  sued  both  before  and  after  obtain- 

ing an  order  of  discharge  for  all  torts  committed  by  him. 

EXECUTORS    AND    ADMINISTRATORS. 

Rule  109.  The  personal  representatives  of  the  deceased  {i.  e., 

his  executors  or  administrators)  can  not  be  sued  for 
torts  committed  by  him. 

Exception  1.   Injuries  to  property  within  3  and 

4  Will.  IV.  c.  42.1 
Exception  2.   Actions  for  dilapidations.^ 
Exception  3.   Actions  for  tort  brought  in  the  form 
of  actions  on  contract. 

EJECTMENT PLAINTIFFS. 

Rule  110.  The  claimant,  or  plaintiff,  in  ejectment  must  be  a 

person  who  has  the  legal  right  to  enter  and  take  pos- 
session of  the  laud,  etc.,  in  respect  of  which  action  is 
brought,  as  incident  to  some  estate  or  interest  therein. 

Rule  111.  All  the  claimants,  or  plaintiffs,  in  whom  the  title  is 

alleged  to  be,  should  join  in  bringing  an  action  of 
ejectment. 

EJECTMENT DEFJENDANTS. 

Rule  112.  The  persons  to  be  made  defendants  in  an  action  of 

ejectment  {i.  e.,  to  be  named  in  the  writ)  are  all  the 
tenants  in  possession  of  the  land,  etc.,  sought  to  be 
recovered. 

Rule  113.  The  persons  Avho  have  a  right  to  defend  in  an  action  of 

ejectment  are  any  persons  named  in  the  writ,  and  any 
person  who  is  in  possession  by  himself  or  his  tenant. 

1  Not  in  force  in  the  United  States.       ings  or  otlier  property  belonging  to  a 

2  The  destruction  or  waste  of  buUd-    benefice  iu  Euo-laud. 


PARTIES  TO   ACTIONS.  135 

CONSEQUENCES    AT   COMMON   LAW    OF   NON-JOINDER   AND    OF 
MIS-JOINDER    OF    PARTIES. 

Ex-CONTRACTU  —  PLAINTIFFS. 

Non-joinder:  If  it  appears  upon  the  face  of  the 
pleadings  that  there  are  other  obligees,  cove- 
nantees, or  parties  to  the  contract,  who  ought 
to  be,  but  are  not,  joined  in  the  action,  it 
is  fatal  on  demurrer,  or  on  motion  in  arrest 
of  judgment,  or  on  error;  and  though  the 
objection  may  not  appear  on  the  face  of  the 
pleadings,  the  defendant  may  avail  himself 
of  it  either  by  plea  in  abatement,  or  as  a 
ground  of  non-suit  on  the  trial  upon  the  plea 
of  general  issue. ^ 
Mis-joinder :  If  it  appears  upon  the  face  of  the 
pleadings  that  too  many  persons  have  been 
made  plaintiffs,  the  error  will  be  fatal  upon 
demurrer,  motion  in  arrest  of  judgment,  or 
on  error ;  if  the  objection  does  not  appear 
upon  the  face  of  the  pleadings  the  defendant 
may  avail  himself  of  it  as  a  ground  of  norir 
suit  on  the  trial. ^ 

Defendants. 

Non-joinder :  If  it  appears  upon  the  face  of  the 
pleadings  that  one  who  should  be  a  defend- 
ant is  omitted,  and  that  such  person  so 
omitted  is  still  living,  the  error  will  be  fatal 
on  demurrer,  on  motion  in  arrest  of  judg- 
ment, or  on  error;  but  if  the  objection  does 
not  so  appear,  it  can  only  be  taken  by  plea 
in  abatement,  verified  by  affidavit.* 

Mis-joinder :  If  too  many  persons  be  made  de- 
fendants, and  the  objection  appear  on  the 
pleadings,  any  of  the  defendants  may  demur, 
move  in  arrest  of  judgment  or  support  a 
writ  of  error;  and  if  the  objection  do  not 
appear  upon  the  pleadings  the  plaintiff  may 
be  non-suited  upon  the  trial,  if  he  fail  in 
proving  a  joint  contract.^ 

»  Chit.  PL  7,  8.  3  jtid.  32. 

2  ibid.  8.  4  Ibid.  34. 


136  COMMON-LAW  PLEADING, 


Ex-Delicto  —  Plaintiffs. 


Non-joinder :  In  actions  in  form  ex-delicto,  if  a 
party  who  ought  to  join  be  omitted,  the  ob- 
jection can  only  be  taken  by  plea  in  abate- 
ment, or  by  way  of  apportionment  of  dam- 
ages on  the  trial. ^ 

Mis-joinder :  If,  however,  too  many  persons  be 
made  co-plaintiffs,  the  objection,  if  it  appear 
on  the  record,  may  be  taken  advantage  of  by 
demurrer,  by  motion  in  arrest  of  judgment, 
or  by  writ  of  error,  or,  if  the  objection  do 
not  appear  on  the  face  of  the  pleadings,  it 
will  be  a  ground  of  non-suit  on  the  trial. ^ 

Defendants. 

Non-joinder :  If  several  persons  jointly  commit 
a  tort,  the  plaintiff  generally  has  his  elec- 
tion to  sue  all  or  any  of  the  parties,  and  non- 
joinder is  not  error.' 

Mis-joinder :  If  several  persons  be  made  defend- 
ants jointly,  where  the  tort  could  not  in  point 
of  law  he  joint,  they  may  demur,  move  in  ar- 
rest of  judgment^  or  have  a  writ  of  error,  but 
the  objection  may  be  aided  by  the  plaintiff's 
taking  a  verdict  against  one  only.  Where 
the  tort  may  be  joint,  the  joinder  of  more 
persons  than  were  liable  constitutes  no  ob- 
jection, and  one  or  more  of  them  may  be 
acquitted  and  a  verdict  taken  against  the 
others.* 

1  Chit.  PI.  55.  8  76,v/.  75. 

8  Ibid.  56.  *  Ibid.  74. 


CHAPTER    VI. 

OF   THE   ORIGINAL  WRIT. 

Up  to  this  point  we  have  considered  the  necessary  pre- 
liminaries to  the  bringing  of  an  action.  We  must  now 
learn  how  the  action  was  in  fact  instituted  at  common  law. 

At  the  outset  we  must  understand  that,  according  to  the 
rule  of  the  Conqueror  and  of  his  successors,  the  Crown 
was  "the  fountain  of  all  justice.  "^  This  conception  was  the 
opposite  of  that  obtaining  before  the  Conquest.  "Neither 
at  the  beginning  nor  at  the  end  of  the  Anglo-Saxon  time, 
was  the  king  considered  in  law  as  the  fountain  of  justice. 
The  law  was  administered  in  the  popular  courts,  theoreti- 
cally as  the  act  of  the  freemen.  It  was  strict  law ;  the  de- 
cision, when  reached,  was  final  in  the  eye  of  the  law ;  and 
not  even  the  Witan  itself  wielded  any  process  by  which  the 
letter  of  the  common  law  could  be  escaped, "  ^  There  was  a 
complete  absence  of  equitable  powers. 

We  have  seen  how  William  superseded  the  Witenagemote 
of  the  Saxon  kings  and  instituted  in  its  stead  the  one  Su- 
preme King's  Court,  the  Aula  Regis,  a  court  of  unlimited 
jurisdiction.^ 

This  court  very  soon  became  a  disturbing  and  an  uncertain 
influence  in  the  regular  administration  of  justice.  It  was 
furnished  with  new  processes  of  law  in  aid  of  its  large  and 
undefined  jurisdiction,  and  very  early  in  its  history  it  clearly 
showed  that  it  would  not  be  confined  by  the  limits  of  its 
predecessor,  and  that  the  object  of  its  founder  was  to  sub- 
stitute its  administration  of  justice  for  that  of  the  prior  local 

1  Bl.  Com.  III.  273  *  »  The  King's  Peace,  46,  47. 

2  Anglo-Saxon  Law,  26. 


138  COMMON-LAW   PLEADING. 

tribunals.  We  are  now  to  inquire  concerning  the  instru- 
mentality which  successfully  transferred  jurisdiction  from 
the  old  popular  and  local  to  the  new  royal  centralized  court. 

"  Under  special  commissions,  the  jurisdiction  of  the  court 
was  limited  to  the  trial  of  such  causes  as  had  been  delegated 
to  the  special  members  of  the  court.  The  ordinary  King's 
Court,  however,  the  full  court  sitting  with  the  king,  exer- 
cised a  jurisdiction  limited  in  fact  only  by  the  king's  will. 
That  is,  there  was  nothing  to  prevent  the  king  from  drawing 
into  his  court  all  the  causes  of  the  people. "^  This,  in  fact, 
he  did,  and  the  means  by  which  he  accomplished  this  great 
result  was  the  original  writ. 

"Prior  to  the  Conquest,  writs  were  almost  unknown  in 
England  as  judicial  process.  No  use  for  them  had  been 
found,  except  for  authorizing  the  trial  of  a  cause  before 
some  special  delegate  not  possessed  of  the  requisite  jurisdic- 
tion. It  (the  original  writ)  served  this  purpose  afterwards 
usefully,  upon  a  more  extensive  scale ;  but  it  was  now  the 
embodiment  of  the  principle  that  the  king  personally  was 
the  fountain  of  justice.  It  was,  indeed,  the  symbol  and 
expression  of  arbitrary  power.  It  expressed  the  king's  sole 
right  over  the  dispensation  of  justice,  a  right  which  he  exer- 
cised on  his  own  terras  until  Magna  Carta  was  extorted 
from  John.  "^ 

We  learn  from  Glanvill  that  when  any  one  complained  to 
the  king,  or  to  his  justiciars,  concerning  his  fee  or  his  free- 
hold, if  the  complaint  was  such  as  was  proper  for  the  deter- 
mination of  the  King's  Court,  or  if  the  king  teas  pleased  to 
have  it  decided  there,  a  writ  called  a  writ  of  prceeipe  (com- 
mand) was  granted.^  This  writ  directed  the  sheriff  to 
command  the  defendant  to  surrender,  without  delay,  to 
the  plaintiff  the  land  in  question;  and  if  the  defendant 
failed  to  do  so,  to  summon  him  before  the  king  or  his 
justiciars  at  a  certain  time,  to  show  why  he  had  so  failed. 
There  was  another  writ  of  prceeipe  of  a  similar  character, 
designed    to   give  the   King's  Court   jurisdiction   over  the 

1  Hist.  Pr.  76.  ^  Glanv.  Lib.  1,  c.  5. 

2  Ibid.  199. 


OF   THE   OEIGINAL   WRIT.  139 

debts  of  the  laity.  ^  Again,  in  all  writs  addressed  to  the 
manorial  courts  issued  by  the  king  or  his  justiciar,  it  was 
provided  that  if  the  lord  to  whom  the  writ  was  addressed 
failed  to  do  justice,  in  his  manorial  court,  in  favor  of  the 
party  who  sought  it,  then  the  king's  officers  (the  sheriff  or 
justiciar  usually)  should  do  it,  and  through  this  7iisi  feceris 
(unless  you  shall  do  it)  clause  many  causes  were  drawn  into 
the  King's  Court.^ 

Finally,  by  a  fictitious  averment  that  a  tortious  act  had 
been  committed  within  the  king^s  jpeace  (as  contrasted  with 
the  'peace  of  some  local  lord),  the  King's  Court  entertained 
jurisdiction  of  trespass  to  the  person  or  to  the  property  of  an 
individual. 

"  Thus,  by  the  writ  process  generally,  partly  by  virtue  of 
an  insidious  clause  in  the  manorial  writs  of  right,  partly  by 
open  usurpation  under  the  writs  of  proecipe,  and  partly  by 
the  use  of  a  fiction  in  a  plaintiff's  appeal  of  trespass  or  theft, 
was  finally  obtained  the  jurisdiction  which  has  supplied  the 
superior  courts  of  England  and  their  new  successor  with 
business  until  the  present  day.  "^  All  of  this  jurisdiction 
thus  acquired  was  in  derogation  of  the  rights  of  the  popular 
courts  and  of  manorial  franchises,  and  rested  upon  the  sole 
authority  of  the  king. 

We  are  now  in  a  position  to  understand  the  full  extent  of 
Blackstone's  meaning  when  he  speaks  of  the  original  writ 
as  "  the  foundation  of  the  jurisdiction  of  that  court  (Common 
Pleas)  being  the  king^s  ivarrant  for  the  judges  to  proceed  to 
the  determination  of  the  cause."*  Again  he  says:  "The 
original  writ  out  of  Chancery  being  the  foundation  and  war- 
rant of  the  whole  proceedings  in  the  Common  Pleas,  if  the 
declaration  does  not  pursue  the  nature  of  the  writ,  the  courfs 
authority  totally  fails. "  ^  This  is  the  reason  why  "  the 
judges  could  not  allow  amendments,  or  pardon  mistakes ; 
they  could  not  permit  a  party  to  change  his  cause  of  action, 
or  to  recover  more  than  his  writ  called  for;  because  any 

1  Hist.  Pr.  77.  *  Bl.  Com.  III.  273*. 

2  Ibid.  79.  6  Ibid.  393. 
8  Ibid.  85. 


140  COMMON-LAW   PLEADING. 

such  departure  from  the  original  would  have  been  a  trans- 
gression of  their  own  instructions.  The  judges  were  not 
commissioned  simply  to  judge  between  the  parties  on  such 
evidence  as  might  be  produced,  and  to  render  an  equitable 
decision  thereon;  they  were  authorized  to  render  only  a 
certain  judgment  if  they  found  the  party  entitled  to  it.  .  .  . 
Viewed  in  this  light,  the  technical  strictness  of  the  early 
common-law  judges  is  reasonable,  and  not  the  motiveless 
quibbling  about  trifles  that  it  is  often  represented  to  be."  ^ 

So  purely  personal  to  the  king  issuing  it  was  this  original 
writ  conceived  to  be  that  "antiently  (until  1  Edw.  VI.)  by 
the  demise  of  the  king,  all  suits  depending  in  his  coui'ts 
were  at  once  discontinued,  and  the  plaintiff  was  obliged  to 
renew  the  process  by  suing  out  a  fresh  writ  from  the  suc- 
cessor; the  virtue  of  the  former  writ  being  totally  gone,  and 
the  defendant  no  longer  bound  to  attend  in  consequence 
thereof. "  2 

The  first  step,  therefore,  which  an  intending  suitor  took  at 
I  common  law  was  to  sue  out  an  original  writ  suited  to  his 
\  particular  case.  Blackstone  speaks  of  suing  it  "from  the 
I  Court  of  Chancery,  which  is  the  officina  justitice  (the  shop 
'  or  mint  of  justice)  wherein  all  the  king's  writs  are 
framed. "  ^  The  student  must  not  be  misled  by  this  sen- 
tence; original  writs  were  sued  out  centuries  before  the 
equitable  jurisdiction  of  the  Court  of  Chancery  was  estab- 
lished.^ The  office  of  Chancellor  had  existed,  according 
to  Lord  Coke,  from  extreme  antiquity,^  and  a  charter  of 
Edward  the  Confessor  is  sealed  by  "Rembald,  the  King's 
Chancellor."^ 

The  Chancellor  was  the  "King's  Secretary,  the  Chaplain 
of  his  Chapel,  and  the  Keeper  of  his  Seal.  ...  By  reason 
of  his  position  as  custodian  of  the  Great  Seal  he  was  the 
head  of  the  office  in  which  the  King's  Charters  were  enrolled, 
and  whence  the  Original  Writs  were  issued."'^     In  Glan- 

1  Hammond's  note  to  BL  Com.  IIL  larlj  established  towards  the  end  of  the 
372.  reign  of  Edward  in.    Ker.  Eq.  Ju.  4,  30. 

2  Bl.  Com.  III.  296*.  6  4  j^st.  78. 

8  Bl.  Com.  III.  273*.  6  The  King's  Peace,  31. 

*  The  Court  of  Chancery  was  regu-         "^  Ker.  Eq.  Ju.  23. 


OF  THE   ORIGINAL   WRIT.  141 

vill's  time,  as  we  have  seen,  when  any  one  was  injured 
concerning  his  freehold,  he  complained  to  the  king  or  to  his 
justiciars,  and  petitioned  that  right  should  be  done  to  hira. 
These  petitions  passed  through  the  Chancellor's  Office,  which 
was  in  its  functions  "  a  great  secretarial  bureau,  a  home  office, 
a  foreign  office,  and  a  ministry  of  justice."^  Very  little 
was  done  by  the  king  that  was  not  done  by  a  document 
bearing  the  Great  Seal,  which  was  the  key  of  the  k'mgdom. 
Almost  every  message  or  mandate  that  came  from  the  king, 
whether  addressed  to  an  emperor  or  to  an  escheator,  to  all  of 
the  king's  liege  subjects,  or  to  one  man  only,  was  a  document 
settled  in  the  Chancery  and  sealed  with  the  Great  Seal.^ 

Originally,  as  has  been  shown,  writs  were  granted  in 
response  to  these  petitions  if  the  complaint  was  such  as 
was  proper  for  the  determination  of  the  King's  Court,  or  if 
the  king  was  pleased  to  have  it  decided  there.  While  these 
writs  specified  with  some  particularity  the  subject-matter 
of  the  complaint,  yet  at  the  outset  they  had  no  connection 
whatever  with  the  form  of  action  or  with  the  subsequent 
count  or  declaration,  but  were  only  general  directions  to  do 
right  to  the  plaintiff.  Their  office  was  simply  to  set  on  foot 
a  suit  under  supreme  authority. ^  "As  the  king's  interfer- 
ence becomes  more  frequent  and  more  normal,  the  work  of 
penning  such  writs  will  naturally  fall  into  the  hands  of 
subordinate  officials,  who  will  follow  precedents  and  keep 
blank  forms.  A  classification  of  writs  will  be  the  outcome; 
some  will  be  granted  more  or  less  as  a  matter  of  course, 
will  be  hrevia  de  cursu,  writs  of  course;  those  which  are 
directed  to  a  feudal  lord  will  be  distinguished  from  those 
which  are  directed  to  a  sheriff;  those  which  bid  the  sheriff 
do  justice,  from  those  which  bid  him  to  summon  the  defend- 
ant to  the  king's  own  court;  those  which  relate  to  the  owner- 
ship of  land  from  those  which  relate  to  debts.  "^  Ultimately 
a  particular  form  of  writ  became  the  only  appropriate  com- 
mencement of  an  action  for  a  particular  redress.     But  even 

1  P.  &  M.  Hist.  I.  172.  8  Hist.  Pr.  196.     See  also  Min.  Inst. 

2  Ibid.  I.  173.  IV.  517,  518. 

*  P.  &  M.  Hist.  I.  129. 


142  COMMON-LAW  PLEADING. 

after  the  writ  had  thus  come  to  be  so  closely  connected  with 
the  remedy  sought  for,  and  until  about  the  time  of  Glanvill, 
a  writ  to  suit  each  case  was  framed  and  issued,  until  in  1258 
the  Provisions  of  Oxford  ^  expressly  forbade  the  Chancellor  to 
frame  new  writs  without  the  consent  of  the  king  and  his 
council.  "This,  with  the  growing  independence  of  the 
judiciary  on  the  one  hand,  and  the  settlement  of  legal 
process  on  the  other,  terminated  the  right  to  issue  special 
writs,  and  at  last  fixed  the  common  writs  in  unchangeable 
form;  most  of  which  had  by  this  time  become  developed  into 
the  final  form  in  which  for  six  centuries  they  were  treated 
as  precedents  of  declaration."^ 

These  fixed  forms  were  inadequate  to  meet  the  needs  of  a 
developing  society.  As  we  have  seen  a  partial  remedy  was 
furnished  by  the  24th  Chapter  of  the  Statute  of  Westminster 
II.,  which,  after  providing  for  a  few  special  cases  to  which 
no  existing  writ  applied,  enacts  further  that 

"  And  whensoever  from  henceforth  it  shall  fortune  in  the  Chan- 
cery, that  in  one  case  a  writ  is  found,  and  in  like  case  falling 
under  like  law,  and  requiring  like  remedy,  is  found  none,  the 
clerks  of  the  Chancery  shall  agree  in  making  the  writ;  or  the 
plaintiffs  may  adjourn  it  until  the  next  Parliament ;  and  let 
the  cases  be  written  in  which  they  can  not  agree,  and  let  them 
refer  themselves  until  the  next  Parliament ;  and  by  consent  of 
men  learned  in  the  law,  a  writ  shall  be  made,  lest  it  might 
happen  after  that  the  court  should  long  time  fail  to  minister  jus- 
tice unto  complainants."  ^ 

As  has  been  already  noticed.  Lord  Coke  asserts  that 
this  statute  is  merely  declaratory  of  the  Common  Law, 
and  Mr.  Bigelow  contends  that  it  "was  only  an  attempt  to 
return  to  what  had  existed  throughout  English  history 
until  writs  of  course,  supplemented  by  the  restrictions  con- 
tained in  the  Provisions  of  Oxford,  had  tied  the  hands  of 
the  courts. "  ^ 

While  it  is  true  that  the  words  of  the  statute  gave  no  power 

1  So  called  because  Parliament  then  *  Hist.  Pr.  198.  See  also  Chit.  PI. 
sat  at  Oxford.  84 ;   Kiulyside  v.  Thornton  et  ah,  2  Bl. 

2  Hist.  Pr.  198.  Rep.  1113. 

3  2  Inst.  405. 


OF   THE   ORIGINAL   WRIT.  143 

to  make  a  completely  new  departure,  for  writs  were  only  to 
be  framed  to  fit  cases  similar  to,  but  not  identical  with, 
cases  falling  within  the  existing  writs  de  cursu,  yet,  as  we 
have  already  said,  the  growth  of  English  law  has  been 
accomplished  through  these  actions  on  the  case  provided  by 
this  Statute  of  Westminster  II. 

In  petty  actions,  wherein  less  than  the  value  of  forty 
shillings  was  involved,  and  which  were  brought  in  the  court- 
baron  or  in  the  county  court,  no  original  writ  was  necessary ; 
the  foundation  of  such  suits  continued  to  be  (as  in  the  times 
of  the  Saxons)  hj  plaint^  that  is,  by  a  personal  petition  pre- 
sented in  open  court  to  the  judge,  wherein  the  party  injured 
sets  forth  his  cause  of  action.^ 

It  is  proper  here  to  refer  again  to  a  great  grievance  which 
was  only  remedied  by  the  strong  words  of  Magna  Carta. 
Our  ancestors  had  to  purchase  justice.  These  original  writs 
were  bought  at  a  great  price.  "  We  may  find  creditors 
promising  the  king  a  quarter  or  a  third  of  the  debts  they 
hope  to  recover  by  means  of  his  writs. "^  "The  idea  that 
litigants  were  to  be  taxed  as  such,  and  that  too  without 
uniformity,  for  purposes  of  general  revenue,  and  not  merely 
to  the  extent  of  the  cost  of  the  clerical  and  ministerial  work 
required  in  the  course  of  an  action,  was  never  abandoned  or 
relaxed  in  the  twelfth  century,  even  if  the  justice  of  it  was 
questioned.  .  .  .  ^  NuUi  vendemus,  nidli  negahimus  aut  dif- 
feremus  rectum  aut  justiciam  '  ^  —  the  most  familiar  passage  / 
of  Magna  Carta  —  has  an  unmistakable  meaning.  The  prac-  / 
tice,  introduced  by  the  Conqueror,  of  setting  a  price  upon/ 
the  dispensation  of  justice  in  the  new  forms,  continued  with- 
out intermission  until  a  power  had  arisen  strong  enough  tg 
assert  its  right  to  stamp  it  out."* 

An  authoritative  book  called  "The  Register  of  Writs" 
was  from  most  ancient  times  kept  in  the  Chancery,  wdierein 
were  entered  all  forms  of  writs  once  issued.  This  Register 
was  not  regarded  as  complete  and  final,  but  a  common  form 

*  Bl.  Com.  III.  273  *.  ^  Lord  Coke  has  justitiam  vel  rectum 

*  P.  &  M.  Hist.  I.  174.  2  Inst.  45. 

4  Hist.  Pr.  190. 


144  COMMON-LAW   PLEADING. 

once  settled  was  not  to  be  lightly  departed  from,  and  any 
variations  had  to  be  supported  by  sufficient  authority.^ 

The  original  writ  was  a  mandatory  letter  issuing  out  of 
the  Chancery,  under  the  Great  Seal  and  in  the  king's  name, 
directed  to  the  sheriff  of  the  county  where  the  injury  was 
alleged  to  have  been  committed,  containing  a  summary 
statement  of  the  cause  of  complaint,  and  was  in  form  either 
optional  or  peremptory;  it  was  termed,  according  to  the 
introductory  words  of  the  writ,  either  a  prcecipe  (command) 
or  a  si  te  fecerit  securum  (if  he  shall  make  you  secure). 
"Whenever  the  plaintiff  demanded  something  certain,  which 
the  defendant  might  himself  perform,  as  the  restoration  of 
the  possession  of  land,  the  payment  of  a  liquidated  debt,  the 
rendition  of  an  account,  and  the  like,  he  might  properly  have 
& prcecipe,  an  example  of  which  is  the  following:  — 

Original  Writ  of  Debt. 

George  the  Fourth,  &c.,  to  the  SherifT  of  ,  greeting  : 

Command  C.  D.,  late  of  ,  gentleman,  that  justly  and 

without  delay  he  render  to  A.  B.  the  sum  of  pounds,  of 

good  and  la.wful  money  of  Great  Britain,  which  he  owes  to  and 
unjustly  detains  from  him,  as  it  is  said.  And  unless  he  shall  do 
so,  and  if  the  said  A.  B.  shall  make  you  secure  of  prosecuting 
his  claim,  then  summon,  by  good  summoners,  the  said  C.  D.,  that 
he  be  before  us,  in  eight  days  of  St.  Hilary,  wheresoever  we  shall 
then  be  in  England,  to  show  wherefore  he  hath  not  done  it ;  and 
have  you  there  the  names  of  the  summoners  and  this  writ. 

Witness  ourself  at  Westminster,  the  day  of  ,  in  the 

year  of  our  reign. 

Where  nothing  specific  was  demanded,  but  only  unliqui- 
dated damages,  to  obtain  which  the  intervention  of  a  court 
was  required,  as  in  writs  of  trespass  or  case,  there  a  si  te 
fecerit  securum  was  issued ;  an  example  of  this  is  the 
following:  — 

Original  Writ  of  Trespass  (for  an  Assault  and  Batteri). 
George  the  Fourth,  &c.,  to  the  Sheriff  of  ,  greeting : 

If  A.  B.  shall  make  you  secure  of  prosecuting  his  claim,  then 
put  by  gages  and  safe  pledges  C.  D.,  late  of  yeoman, 

1  P.  &  M.  Hist.  1. 174 ;  Beeves'  Hist.  III.  437. 


OP  THE  ORIGINAL  WRIT.  145 

that  he  be  before  us  on  the  morrow  of  All  Souls,  wheresoever  we 
shall  then  be  in  England,  to  show  wherefore,  with  force  and 
arms,  at  aforesaid,  he  made  an  assault  upon  the  said 

A.  B.,  and  beat,  wounded,  and  ill-treated  him,  so  that  his  life 
was  despaired  of,  and  other  wrongs  to  him  there  did  to  the 
damage  of  the  said  A.  B.  and  against  our  peace ;  and  have  you 
there  the  names  of  the  pledges  and  this  writ. 

Witness  ourself  at  Westminster,  the  day  of  ,  in  the 

year  of  our  reign. 

It  will  be  observed  that  the  optional  form,  the  prcecipe, 
commands  the  defendant  either  himself  to  pay  the  debt  to 
the  plaintiff,  or  to  show  at  a  given  time,  and  in  the  King's 
Court,  why  he  has  not  paid  it.  In  the  peremptory  form, 
however,  the  defendant  is  immediately  called  upon  to  appear 
in  court,  provided  the  plaintiff  give  good  security  to  prose- 
cute his  claim.  Both  species  of  writs  are  tested  (witnessed) 
in  the  king's  own  name,  and  are  under  the  Great  Seal  of  the 
realm.  Originally,  the  plaintiff  actually  gave  security  in 
each  case  to  prosecute  his  claim;  if  he  brought  his  actio4 
without  cause,  or  failed  in  the  prosecution  of  it  whei 
brought,  he  was  liable  to  an  amercement  from  the  Crown  foi 
making  a  false  accusation;  and  the  judgment  against  hin 
still  is  "that  he  be  in  mercy."  This  giving  of  security 
became  later  a  mere  matter  of  form,  and  two  men  of  straw,  ^ 
John  Doe  and  Richard  Roe,  were  always  returned  as  the^ 
standing  pledges  for  this  purpose. 

The  day  on  which  the  defendant  is  ordered  to  appear  in 
court,  and  on  which  the  sheriff  is  ordered  to  bring  in  the 
writ,  and  to  report  what  he  has  done  in  pursuance  of  its 
commands,  is  called  the  return  of  the  writ;  it  is  then  re- 
turned by  him  to  the  king's  justices  at  Westminster.  The 
writ  was  made  returnable  always  upon  some  day  in  one  of 
the  four  terms  in  which  the  court  sat  for  the  despatch  of 
business,  and  at  least  fifteen  days  were  allowed  from  its  date, 
in  order  that  the  defendant  might  have  time  to  come  up  to 
Westminster,  even  from  the  most  remote  part  of  the  kingdom. 
These   four  annual  terms  of   court  were  very  ancient,   and 

1  See  Black's  Law  Dictionary,  767. 
10 


146  COMMON-LAW   PLEADING. 

originated  by  reason  of  the  exemption  by  the  Church  of  cer- 
tain holy  seasons  of  the  year  from  what  was  thought  to  be 
the  profanation  of  legal  strife.  Thus  Advent  and  Christmas 
were  sacred  seasons,  and  after  them  came  the  Hilary  term, 
in  January ;  Lent  and  Easter-tide  were  followed  by  the 
Easter  term;  Pentecost  preceded  Trinity  term;  and  finally 
the  long  vacation,  between  midsummer  and  Michaelmas, 
which  was  allowed  for  the  haytime  and  harvest,  preceded 
Michaelmas  term,  in  October.  In  every  term  there  were 
stated  days  called  days  in  bank,  which  were  days  of  appear- 
ance in  the  Court  of  Common  Pleas.  These  were  generally 
a  week  apart,  and  had  reference  to  some  festival  of  the 
Church.  On  some  one  of  these  days  in  bank,  all  original 
writs  were  necessarily  made  returnable,  and  these  were 
called  the  returns  of  that  term.  Although  many  of  these 
return  days  were  fixed  on  Sunday,  yet  the  court  never  sat 
to  receive  them  until  the  following  Monday.  On  the  first 
day  in  each  term  the  court  sat  to  take  essoins  (excuses)  for 
such  as  did  not  appear  in  obedience  to  the  writ,  wherefore 
this  is  usually  called  the  essoin  day  of  the  term.  But, 
according  to  a  very  ancient  practice,  the  person  summoned 
had  three  days  of  grace,  beyond  the  return  of  the  writ,  in 
which  to  make  his  appearance ;  for  if  he  appeared  on  the 
fourth  day  inclusive  (quarto  die  post)  it  was  sufficient.^ 
;  In  the  United  States  original  writs,  properly  so-called, 
never  existed.  The  constitutions  and  the  laws  of  the  United 
States,  and  of  the  several  States,  confer  and  fix  jurisdiction 
(upon  the  courts.  While  these  writs  have  been  abolished 
in  England,  their  original  functions  and  their  history  are 
yet  vital  and  instructive.  For  this  reason  they  have  been 
considered  more  in  detail  than  their  practical  importance 
demands.  In  theory,  some  conduit  pipe  is  still  requisite  to 
transfer  jurisdiction  from  the  sovereign,  whether  monarch 
or  people,  to  the  delegated  tribunal.  Such  conduit  was  the 
original  writ. 

It  is  stated  by  Stephen  that,   "One  object  of  the  original 
writ,  therefore,  is  to  compel  the  appearance  of  the  defendant 

1  Bl.  Com.  III.  278*. 


OF  THE   ORIGINAL  WRIT.  147 

in  court. "  *  As  has  been  pointed  out  by  Hammond,  it  is 
a  mistake  to  identify  the  original  writ  with  our  modern 
summons,  or  with  other  original  process  to  bring  the  defend- 
ant into  court.  2  A  defendant  cannot  be  damaged  by  the! 
mere  suing  out  against  him  of  the  original,  so  that  no  action/ 
lies  for  the  issuing  of  that  original.^  But  if  the  original 
were  process  upon  which  the  defendant  could  be  compelled 
to  come  into  court,  an  action  would  manifestly  lie.  As  we 
shall  presently  see,  the  first  step  to  compel  the  defendant's 
appearance  was  judicial,  as  contrasted  with  original,  process. 
In  the  King's  Bench  the  plaintiff's  attorney  commences  the 
suit  by  preparing  a  draft  (called  a  prcecipe)  of  the  original 
writ,  appropriate  to  the  proposed  action,  in  such  form  as  is 
thought  conformable  to  precedent,  and  the  subsequent  steps 
are  taken  by  the  proper  officers  of  the  court.  In  this  coun- 
try, the  prcecipe  signifies  the  written  direction  given  by  the 
plaintiff's  attorney  to  the  clerk  of  the  court  to  issue  process 
in  a  particular  case. 

1  Steph.  PI  41.  8  F.  N.  B.  95,  note  a. 

2  Bl.  Com.  III.  372. 


CHAPTER    VII. 

OF   THE   PROCEEDINGS   IN   AN  ACTION,   FROM   ITS   COM- 
MENCEMENT  TO  ITS   TERMINATION. 

After  an  action  at  law  has  been  commenced,  the  regular 
steps  in  succession  are,  The  Process,  The  Appearance  of  the 
Defendant,  The  Pleadings,  The  Trial,  The  Judgment,  and 
The  Execution.     Finally  there  may  be  Proceedings  in  Error. 

The  Process. 

j  After  suing  out  the  original  writ,  the  next  step  in  the 
prosecution  of  the   suit  is  called  the  process^  and   is   the 
L  means  of  compelling  the  defendant  to  appear  in  court. 

All  process  having  this  object  in  view  was  called  original, 
as  distinguished  from  mesne  process,  issuing  pending  the 
suit  for  interlocutory  matters,  and  from  final  process  which 
was  always  in  execution  of  the  court's  judgment.  Only  the 
original  writ  issued  from  the  Chancery,  and  was  under  the 
i  Great  Seal  of  the  Kingdom.  All  subsequent  process,  whether 
'  original,  mesne,  or  final,  was  judicial  process,  and  issued  out 
of  the  court  of  common  law,  into  which  the  original  writ 
was  made  returnable,  under  the  private  seal  of  that  court; 
it  bore  teste  in  the  name  of  the  chief  justice  of  that  court. 

Process  at  common  law  varied  "in  stringency  from  the 
polite  summons  to  the  decree  of  outlawry."^  The  initial 
process,  the  sutnmons,  was  a  warning  to  appear  in  court  at 
the  return  of  the  original  writ,  given  to  the  defendant  in 
person,  or  left  on  his  farm  or  land  by  two  of  the  sheriff's 
messengers,  called  summoners.  In  real  actions  the  warning 
on  the  land  was  given  by  erecting  a  white  stick  or  wand  on 
the  defendant's  ground,   and,  later,  notice   had   also  to  be 

1  P.  &  M.  Hist.  II.  576. 


OP  THE  PROCEEDINGS   IN   AN   ACTION.  149 

proclaimed  on  some  Sunday  before  the  door  of  the  parish 
church.  If  the  defendant  disobeyed  this  verbal  summons, 
the  next  compulsory  step  was  a  writ  of  Attachment  or  pone, 
so-called  from  the  words  of  the  writ  ''''pone  per  vadium  et 
salvos  plegios  "  (put  by  gage  and  safe  pledges).  This  writ 
commanded  the  sheriff  to  attach  the  defendant  by  taking 
gage,  i.  e.,  certain  of  his  goods,  which  he  forfeited  if  he  did 
not  appear,  or  by  making  him  find  safe  pledges,  i.  e. ,  sureties, 
who  should  be  fined  in  case  of  his  non-appearance.  In  cases 
of  trespass  vi  et  armis,  or  for  other  injuries  which  though  not 
forcible  are  yet  trespasses  against  the  peace,  as  deceit,  and 
conspiracy,  where  the  violence  of  the  wrong  requires  a  more 
speedy  remedy,  this  was  the  first  and  immediate  process. 
If  the  defendant  still  proved  obdurate,  then  he  was  further 
compelled  by  a  writ  of  distringas  (you  shall  distrain),  or 
distress  infinite,  under  which  he  was  gradually  stripped 
of  all  his  goods  by  repeated  distresses,  until  he  rendered 
obedience  to  the  king's  writ  by  appearing  in  court.  Here 
process  ended  in  the  case  of  injuries  without  force ;  for 
the  law  regarded  a  man  who  had  no  property  as  incapable  of 
making  satisfaction,  and  therefore  looked  upon  all  further 
process  as  useless.  Besides,  it  did  not  permit  the  feudal 
lord  to  be  deprived  of  his  man^s  services  by  process  against 
his  person  for  injuries  merely  civil.  But,  in  cases  of  inju- 
ries accompanied  with  force,  the  law  punished  the  breach  of 
the  peace,  and  endeavored  to  prevent  its  recurrence  by  al- 
lowing process  against  the  defendant's  person  in  case  he 
neglected  to  appear  upon  the  former  process  of  attachment, 
or  if  he  had  no  property  whereby  to  be  attached.  This 
process  was  a  capias  ad  respondendum  (you  shall  take  for 
answering),  under  which  the  defendant's  body  could  be  sub- 
jected to  imprisonment.  Subsequently,  in  order  to  reach 
indigent  wrong-doers,  this  process  was  also  allowed  by 
statute  in  actions  of  account,  of  debt,  of  detinue,  in  all 
actions  on  the  case,  and  finally  in  almost  every  species  of 
complaint.  As  an  instance  of  the  indirect  way  in  which 
English  law  has  surmounted  obstacles  for  the  removal  of 
which  the  times  were  not  yet  ripe,  it  should  be  noted,  that, 


150  COMMON-LAW  PLEADING. 

before  this  amendatory  legislation  was  had,  a  practice  had 
been  introduced  of  bringing  an  original  writ  of  trespass 
quare  clausum  fregit,  for  breaking  the  defendant's  close  vi 
et  armis,  which,  by  the  old  common  law,  subjected  the  de- 
fendant's person  to  be  arrested  by  writ  of  capias;  and  then, 
by  connivance  of  the  court,  the  plaintiff  might  proceed 
to  prosecute  the  defendant,  who  was  under  arrest  for 
an  imaginary  trespass,  for  any  other  less  forcible  injury. 
This  writ  of  capias  commanded  the  sheriff  to  take  the  body 
of  the  defendant,  if  he  were  found  in  the  sheriff's  bailiwick 
or  county,  and  him  safely  to  keep,  so  that  he  might  be  pro- 
duced in  court  on  the  return  day  to  answer  to  the  complaint 
against  him.  If  the  sheriff  of  Oxfordshire  (in  which  county 
the  injury  may  be  supposed  to  be  committed  and  the  action 
to  be  laid)  cannot  find  the  defendant  in  his  jurisdiction,  he 
returns  that  the  defendant  is  not  found  (non  est  inventus')  in 
his  bailiwick;  whereupon  another  writ  issues,  called  a 
testatum  capias,  directed  to  the  sheriff  of  the  county  where 
the  defendant  is  supposed  to  reside,  for  example,  Berkshire ; 
this  second  recites  the  first  writ,  and  adds  that  it  is  testified 
(testatum  est)  that  the  defendant  latitat  et  discurrit  (lurks 
and  wanders  about)  in  his  bailiwick,  wherefore  he  (the 
sheriff  of  Berkshire)  is  commanded  to  take  the  defendant,  as 
in  the  first  capias.  But  where  a  defendant  absconds,  and 
the  plaintiff  desires  to  proceed  to  outlawry  against  him,  if 
the  sheriff  cannot  find  him  upon  the  first  writ  of  capias, 
and  returns  a  non  est  inventus,  there  issues  out  an  alias 
(formerly)  writ  of  capias,  and  after  that  a  pluries  (often), 
to  the  same  general  effect  as  the  former.  And,  if  a  non  est 
inventus  is  returned  upon  all  of  them,  then  a  writ  of  exigent 
or  exigi  facias  (you  shall  cause  to  be  exacted)  may  be  sued 
out,  which  requires  the  sheriff  to  cause  the  defendant  to  be 
proclaimed  or  exacted  in  five  county  courts,  successively,  to 
surrender  himself;  if  he  does,  then  the  sheriff  shall  take 
him,  as  in  a  capias;  but  if  he  does  not  appear,  and  is  re- 
turned quinto  exactus  (for  the  fifth  time  exacted),  he  shall 
then  be  outlawed  by  the  coroners  of  the  county.  For  greater 
publicity,  it  was  subsequently  required  that  a  writ  of  procla- 


OF  THE   PROCEEDINGS   IN   AN    ACTION.  151 

mation  should  issue  at  the  same  time  with  the  exigent,  com- 
manding the  sheriff  of  the  county,  wherein  the  defendant 
dwells,  to  make  three  proclamations  of  the  impending 
process  in  places  the  most  public,  and  where  the  fact  would 
most  likely  come  to  the  defendant's  knowledge,  a  month 
before  the  outlawry  shall  take  place.  This  judgment  of 
outlawry  put  a  man  out  of  the  protection  of  the  law,  made 
him  incapable  of  bringing  a  legal  action,  and  forfeited  all 
his  goods  and  chattels  to  the  king.  If,  after  outlawry,  the 
defendant  appeared  publicly,  he  could  be  arrested  by  a  writ 
of  capias  utlagatum  (you  shall  take  the  outlaw),  and  com- 
mitted to  prison  until  the  outlawry  should  be  reversed,  which 
reversal  was  made,  in  civil  cases,  upon  almost  any  pretext. 
"Outlawry  was  usually  a  last  resort.  It  was  seldom  pro- 
claimed except  as  punishment  for  contumacy ;  that  is,  for 
unyielding  disobedience  of  the  requirements  of  the  law  when 
once  set  in  motion,  or  of  the  commands  of  the  king  or  of  the 
courts.  .  .  .  The  contumacy  of  an  alleged  criminal,  or  of 
a  recusant  defendant,  if  not  already  known  to  the  king,  was 
reported  to  him,  on  judgment  of  court,  for  the  final  sentence 
of  the  law.  And  now,  unless  the  influence  of  others  or  the 
king's  own  disposition  towards  him  availed,  the  hopeful 
outlaw,  who  had  preferred  the  uncertainty  of  concealment 
and  flight  to  the  doubtful  event  of  the  ordeal  or  the  duel,  or 
to  the  certainty  of  imprisonment,  was  turned  over  to  the 
tender  mercies  of  that  disproportionate  part  of  the  popula- 
tion who,  strangers  to  pity,  knew  no  shrinking  at  the  sight 
of  blood."! 

Two  things  are  especially  to  be  noted  by  the  student  in 
connection  with  this  procedure  enforced  through  so  many 
centuries.  The  first  is  the  tedious  forbearance  of  the  law. 
"Very  slowly  it  turns  the  screw  which  brings  the  pressure  to 
bear  upon  the  defendant.  ...  If  we  would  understand  its 
patience,  we  must  transport  ourselves  into  an  age  when 
steam  and  electricity  had  not  become  ministers  of  the  law, 
when  roads  were  bad  and  when  no  litigant  could  appoint  an 
attorney  until  he  had  appeared  in  court.     Law  must  be  slow 

1  Hist.  Pr.  348,  349. 


152  COMMON-LAW  PLEADING. 

in  order  that  it  may  be  fair. "  ^  Secondly,  we  must  especially 
observe  that  no  judgment  can  be  given  against  the  absent  in 
a  personal  action.  There  is  no  judgment  by  default.  "One 
thing  our  law  would  not  do,  the  obvious  thing.  It  would 
exhaust  its  terrors  in  the  endeavor  to  make  the  defendant 
appear,  but  it  would  not  give  judgment  against  him  until  he 
had  appeared,  and,  if  he  was  obstinate  enough  to  endure  im- 
prisonment or  outlawry,  he  could  deprive  the  plaintiff  of  his 
remedy.  .  .  .  Instead  of  saying  to  the  defaulter,  '  I  don't 
care  whether  you  appear  or  no,'  it  sets  its  will  against  his 
will :  '  But  you  shall  appear. '  To  this  we  may  add,  that  the 
emergence  and  dominance  of  the  semi-criminal  action  of 
trespass  prevents  men  from  thinking  of  our  personal  actions 
as  mere  contests  between  two  private  persons.  The  contu- 
macious defendant  has  broken  the  peace,  is  defying  justice 
and  must  be  crushed.  Whether  the  plaintiff^s  claim  ivill 
he  satisfied  is  a  secondary  question.^^^  It  required  nearly  six 
centuries  to  correct  this  primitive  misconception.^ 

As  the  king,  at  first  actually  and  later  in  contemplation  of 
law,  always  sat  in  person  in  the  Court  of  King's  Bench,  it 
might  be  supposed  that  no  original  writ  was  required  for  the 
institution  of  a  case  in  that  court,  yet,  as  a  matter  of  fact, 
suits  were  frequently  there  begun  by  original,  particularly 
in  actions  of  ejectment  and  of  trespass.  An  explanation  of 
this  is  furnished  by  the  following  sentence  of  Blackstone : 
"As  the  justices  of  this  court  have,  by  its  fundamental 
constitution,  power  to  determine  all  offences  and  trespasses, 
by  the  common  law  and  custom  of  the  realm,  it  needed  no 
original  writ  from  the  Crown  to  give  it  cognizance  of  any 
misdemeanor  in  the  county  wherein  it  resides.''^  In  other 
cases,  therefore,  it  would  need  an  original  writ  to  entertain 
jurisdiction  of  civil  causes.  In  this  court  all  writs  were 
returnable,  not  at  Westminster,  where  the  Court  of 
Common  Pleas  was  fixed  by  Magna  Carta,  but,  "  ubicunque 
fueriynus  i^i  Anglia "  (wheresoever  we  (the  king)  shall 
be   in  England),   the  Court  of  King's  Bench  having  been 

1  P.  &  M.  Hist.  n.  589.  8  Stat.  2  Will.  IV.  c.  39,  sec.  1 6  ( 1 832 ). 

»  P.  &  M.  Hist,  II.  592,  593.  *  BL  Com.  lU.  285*. 


OF   THE   PROCEEDINGS   IN   AN   ACTION,  153 

removable  into  any  part  of  England  at  the  pleasure  of  the 
Crown. 

Bill  of  Middlesex,  Latitat  and  Quo  Minus. 

This  brings  us  to  the  consideration  of  the  fictions,  whereby 
the  King's  Bench  and  the  Exchequer  intruded  upon  the  civil 
jurisdiction  exclusively  belonging  to  the  Common  Pleas. 

As  has  been  said,  the  King's  Bench  needed  no  original 
writ  to  give  it  cognizance  of  any  misdemeanor  committed 
in  the  county  wherein  it  happened  to  sit.  But,  as  by  the 
very  fact  of  its  coming  into  any  county  it  superseded  the 
ordinary  administration  of  justice  therein  by  the  usual 
authorities  thereof,  it  had  to  invent  a  process  of  its  own  to 
bring  in  such  persons  as  were  accused  of  committing  any 
forcible  injury  therein.  Such  process  was  called  a  bill  of 
Middlesex,  when  the  court  was  sitting  in  Middlesex,  of 
Kent,  when  sitting  there,  and,  in  a  word,  always  took  the 
name  of  the  particular  county  where  the  King's  Bench  was 
at  the  time  sitting.  This  bill  of  Middlesex  (for  the  court 
ordinarily  sat  in  that  county)  was  formerly  always  issued  in 
consequence  of  a  plaint  of  trespass  quare  clausum  fregit, 
entered  in  the  records  of  the  court,  and  was  in  form  a  capias 
directed  to  the  sheriff  of  that  county,  commanding  him  to 
take  the  defendant  and  have  him  before  the  king  at  West- 
minster, on  a  day  named,  to  answer  to  the  plaintiff  of  a  plea 
of  trespass.  If  the  sheriff  does  not  find  the  defendant  in 
Middlesex,  he  returns  "wow  est  inventus,^^  whereupon,  as  we 
have  before  seen,  there  issues  out  a  writ  of  "  latitat  "  (called 
testatum  capias  in  the  Common  Pleas)  to  the  sheriff  of  the 
county  where  the  defendant  actually  is,  upon  which  he 
can  be  arrested  and  compelled  to  give  bail  to  appear  at 
Westminster  to  answer  the  supposed  trespass.  Of  course, 
if  the  defendant  be  actually  arrested  in  Middlesex  upon 
the  bill  of  Middlesex,  no  ^^ latitat"  is  required.  It  is  by 
means  of  this  proceeding  that  the  King's  Bench  acquired 
its  usurped  jurisdiction,  and  in  this  way :  the  accusation  of 
trespass  in  Middlesex  gives  this  court  jurisdiction  of  the 
alleged   trespass    without   any   original    writ.      But  when 


154  COMMON-LAW  PLEADING. 

once  the  defendant  is  in  the  custody  of  the  court  he  is  its 
prisoner.  "By  practice  of  very  ancient  date  in  all  per- 
sonal suits,  where  an  officer  or  prisoner  of  the  King's 
Bench,  or  an  officer  of  the  Common  Pleas,  is  defendant,  the 
course  has  been  to  proceed  against  such  defendant  in  the 
court  in  which  he  is  officer  or  prisoner  by  exhibiting  (i.  e., 
filing)  a  hill  against  him,  among  the  records  of  the  court, 
ivithout  suing  out  any  original  ivrit.  For  when  the  defendant 
is  in  either  of  the  privileged  characters  above  mentioned 
the  two  great  purposes  of  the  original  writ  are  superseded. 
As  he  is  actually  present  in  court,  or  considered  as  being 
so,  no  original,  of  course,  is  requisite  to  enforce  his  appear- 
ance;^ and,  as  he  is  already  within  the  jurisdiction  of  the 
court  as  its  officer  or  prisoner,  an  instrument  of  that  kind 
is  not  deemed  necessary  to  give  authority  for  the  institution 
of  the  suit.  .  This  practice,  however,  is  confined  to  personal 
actions,  and  it  does  not  appear  that  actions  real  or  mixed 
have  ever  been  allowed  to  be  thus  commenced.  "^ 

In  order  to  found  this  jurisdiction,  it  is  not  necessary  that 
the  defendant  be  actually  in  the  custody  of  the  marshal  of 
the  court  or  in  its  prison  (the  marshalsea);  for,  as  soon  as 
he  appears,  or  puts  in  bail,  to  the  process,  he  is  deemed  by 
so  doing  to  be  in  such  custody  of  the  marshal  as  will  give 
the  court  jurisdiction  to  proceed.  Hence,  in  the  bill  of 
process,  a  complaint  of  trespass  is  always  suggested,  what- 
ever else  may  be  the  real  cause  of  action.  Thus  we  have 
the  artifice  completely  successful.  Upon  an  imaginary  tres- 
pass, a  constructive  prisoner  has  been  brought  within  the 
jurisdiction  of  the  court;  once  there,  he  can  be  proceeded 
against  upon  any  personal  cause  of  action  whatsoever,  al- 
though independently  of  the  fictitious  trespass  and  arrest 
the  court  would  have  no  jurisdiction  in  the  premises. 

The  Court  of  Exchequer  was  not  to  be  outdone  by  the 
King's  Bench. 3  In  this  court  there  was  no  proceeding  by 
original  writ,  because  in  it  the  king  was  always  plaintiff, 

1  It  will  be  recollected  that  the  »  jt  is  said  bv  Kerlj  (Eq.  Ju.  12) 
original  writ  did  not  enforce  the  de-  that  the  fictitious  use  of  the  writ  of  quo 
fendant's  appearance.     Ante,  147.  minns  by  the  Exchequer  ante  dated  the 

2  Steph.  PI.  76.  similar  use  of  the  bill  of  Middlesex  by 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  155 

and  was  there  calling  upon  his  debtors  to  account  to  hira 
for  their  debts,  "  as  the  withholding  and  non-payment  thereof 
is  an  injury  to  his  jura  fiscalia  [revenue  rights]."^  As  all 
the  officers  of  this  court  have,  like  those  of  the  other  superior 
courts,  the  privilege  of  suing  and  of  being  sued  only  in 
their  own  court,  so  also  the  king's  debtors  and  farmers,  and 
all  accountants  of  the  Exchequer,  are  privileged  to  sue  and 
implead  one  another,  or  any  stranger,  in  all  common-law 
actions  where  only  the  personalty  is  concerned.  This  gave 
a  foundation  for  a  fictitious  complaint  that  the  intended 
defendant,  in  a  proposed  case,  owes  money  to  the  intending 
plaintiff,  who  avers  himself  to  be  a  debtor  of  the  king,  and 
the  less  able  to  pay  that  debt  because  the  defendant  has  failed 
to  pay  him.  The  writ  upon  which  all  proceedings  are 
based  in  this  court  is  called  a  quo  minus  (by  which  the  less). 
The  plaintiff  suggests  that  he  is  the  king's  farmer  or  debtor, 
and  that  the  defendant  has  done  him  the  injury  or  damage 
complained  of,  quo  minus  sufficiens  existit,  "by  which  he  is 
the  less  able,"  to  pay  the  king  his  debt  or  rent.  Upon  this 
writ  the  defendant  may  be  arrested  as  upon  a  capias,  and, 
when  he  is  thus  brought  within  the  jurisdiction  of  the  court, 
he  may  be  proceeded  against  for  any  personal  cause  of  action. 
By  this  suggestion  of  privilege,  as  the  king's  debtor,  which 
was  permitted  to  all  as  a  mere  fiction,  any  person,  as  well 
as  the  king's  accountant,  might  be  admitted  to  sue  in  the 
Exchequer,  and  so  the  Court  of  Exchequer  successfully 
rivalled  the  King's  Bench  in  the  enlargement  of  its  juris- 
diction. ^  The  quo  minus  was  an  instance  of  the  process 
called  an  attachment  of  privilege,  which  was  in  nature  a 
capias,  and  which  issued  at  the  suit  of  any  officer  of  the 
King's  Bench,  Common  Pleas,  or  Exchequer,  against  any 
person  liable  to  him  in  a  personal  cause  of  action.  In  such 
cases,  by  a  very  ancient  privilege,  the  officer  was  allowed  to 

the  King's  Bench.     But  he   cites   no  the  date  of  innovation  in  either  court 

authority  for  his  statement.   Blackstone,  is  not  certainly  known. 

Reeves,  and  Stephen  write  as   if  the         i  Bl.  Com.  III.  45  * 

King's   Bench    led    the    way    in    this         2  Yot  observations  on  these  fictions, 

a.'ssumption  of  jurisdiction.    It  is  stated  see  Harg.  Law  Tracts,  422. 

ic  Hargrave's   Law  Tracts  (422),  that 


156  COMMON-LAW  PLEADING. 

file  a  declaration  in  his  own  court  against  the  defendant  with- 
out having  obtained  an  original  writ,  and  the  defendant's 
appearance  was  enforced  by  this  attachment  of  privilege.^ 

The  ancient  rules  connected  with  the  arrest  of  the  defend- 
ant, the  giving  of  common  and  of  special  bail,  and  the  reason 
for  adding  the  clause  ac  etiam  (and  also)  to  the  usual  complaint 
of  trespass  and  later  to  the  writ  of  capias,  have  now  no 
sufficient  interest  to  require  their  consideration  here.  A 
reference  to  Tidd's  Practice  will  fully  inform  the  student 
upon  these  points. 

In  England,  as  has  been  said,  original  writs  have  been 
abolished,  and  the  rules  of  the  Supreme  Court  of  Judicature, 
promulgated  in  1883,  authorize  and  require  the  simplest  form 
of  process.     Order  II.,  Paragraph  L,  provides  as  follows:  — 

"  Every  action  in  the  High  Court  shall  be  commenced  by  a 
writ  of  summons,  which  shall  be  indorsed  with  a  statement  of  the 
nature  of  the  claim  made,  or  of  the  relief  or  remedy  required 
in  the  action,  and  which  shall  specify  the  Division  of  the  High 
Court  to  which  it  is  intended  that  the  action  should  be  assigned." 

The  general  form  of  this  writ  of  summons  is  the  follow- 
ing:— 

In  the  High  Court  of  Justice.  Between  A.  B.,  Plaintiff, 

Division.  and 

C.  D.  and  E.  F.,  Defendants. 

Victoria,  by  the  Grace  of  God,  &c. 

To  C.  D.,  of  ,  in  the  county  of 

We  command  you,  That  within  eight  days  after  the  service  of 
this  writ  on  you,  inclusive  of  the  day  of  such  service,  you  do 
cause  an  appearance  to  be  entered  for  you  in  an  action  at  the  suit 
of  A.  B. ;  and  take  notice  that  in  default  of  your  so  doing  the 
plaintiff  may  proceed  therein,  and  judgment  may  be  given  in 
your  absence. 

Witness:  Roundell,  Earl  of  Selborne,  Lord  High  Chan- 
cellor of  Great  Britain,  the  day  of  ,  in  the 
year  of  Our  Lord  one  thousand  eight  hundred  and  , 

1  Steph.  PL  77. 


OP    THE   PROCEEDINGS   IN   AN   ACTION.  157 

Memorandum  to  he  subscribed  on  the  writ. 

N.  B.  —  This  writ  is  to  be  served  within  twelve  calendar  months 
from  the  date  thereof,  or,  if  renewed,  within  six  calen- 
dar months  from  the  date  of  the  last  renewal,  including 
the  day  of  such  date,  and  not  afterwards. 

The  defendant  (or  defendants)  may  appear  hereto  by  entering 
an  appearance  (or  appearances),  eitlier  personally  or  by  solicitor, 
at  the  Central  Office,  Royal  Courts  of  Justice,  Loudon. 

Indorseinents  to  be  made  on  the  writ  before  issue  thereof. 

The  plaintiff's  claim  is  for,  &c. 

This  writ  was  issued  by  the  said  plaintiff,  who  resides  at 
,  or,  this  writ  was  issued  by  E.  F.,  of  ,  whose 

address  for  service  is  ,  solicitor  for  the  said  plaintiff, 

who  resides  at  (mention  the  city,  town,  or  parish,  and 

also  the  name  of  the  street  and  number  of  the  house  of  the  plain- 
tiff's residence,  if  any). 

Indorsement  to  be  made  on  the  writ  after  service  thereof. 

This  writ  was  served  by  me  at  on  the  defendant 

on  the  day  of 

Indorsed  the  day  of  18    . 

(Signed) 

(Address) 

In  this  country  generally  a  summons  is  the  form  of  process 
used  to  institute  a  suit,  and  to  require  the  defendant  to 
appear  in  court.  The  form  now  in  force  in  the  Supreme 
Court  of  the  District  of  Columbia  is  the  following  (Rule 
11):- 

Summons. 

In  the  Supreme  Court  of  the  District  of  Columbia. 

A.  B.,  Plaintiff,     ) 

vs.  >  At  Law,  No. 

C.  D.,  Defendant.  ) 

The  President  of  the  United  States  to  the  defendant, 
greeting : 
You  are  hereby  commanded  to  appear  in  this  court  on  or  be- 
fore the  twentieth  day,  exclusive  of  Sundays  and  legal  holidays, 
after  the  day  of  the  service  of  this  writ  on  you,  to  answer  the 


lo>»  COMMON-LAW   PLEADING. 

plaintiff's  suit  and  show  why  he  should  not  have  judgment  against 
you  for  the  cause  of  action  stated  in  his  declaration. 

Witness  the  honorable  ,  chief  justice  of  said  court, 

the  day  of  A.  D.  18     . 

,  Clerk. 
J  ,  Assistant  Clerk. 

Eule  10. 

A  notice  to  plead  shall  be  subscribed  to  every  declaration  in 
the  following  form  : 

The  defendant  is  to  plead  hereto  on  or  before  the  twentieth 
day,  exclusive  of  Sundays  and  legal  holidays,  occurring  after  the 
day  of  the  service  hereof;  otherwise,  judgment. 

Except  this  notice  to  plead,  subscribed  to  the  declaration,  no 
rule  to  plead  or  demand  of  plea  shall  be  necessary. 

/  A  capias  ad  respondendum,  authorizing  the  arrest  of  the 
I  defendant's  person,  is  of  very  limited  use  in  this  country  as 
I  original  process.  It  is  allowed  in  some  jurisdictions  by 
/  express  statutory  authority  in  cases  of  fraud,  breach  of  trust, 
t    or  other  gross  wrong-doing. 

An  attachment  is  similarly  authorized  against  the  property 

/of  absconding  debtors,  non-residents,  and  other  classes  of 
persons  specifically  designated  in  the  statutes  providing  for 
this  summary  process. 
I  Reference  must  be  had  to  local  legislation  upon  these 
\  subjects,  and  to  books  of  practice  for  information  as  to  the 
proper  service  of  process  and  kindred  topics. 

The  Appearance  of  the  Defendant. 

The  main  object  of  all  process  was  to  compel  the  appear- 
ance of  the  defendant,  for  until  that  was  effected  there 
could,  in  a  personal  action,  be  no  pleading,  and  of  course  no 
judgment  given,  nor  could  any  other  act  be  done  in  court 
beyond  the  issuing  of  the  process,  which,  as  we  have  seen, 
had  its  final  resource  in  outlawry.  When  the  defendant 
appeared  the  following  entry  was  made  upon  the  records  of 
the  court:  '-'■  And  the  said  C.  D.  [the  defendant]  hy  E.  F., 
his  attorney,  comes  "  (venit),  &c.  This  word,  venit,  is  the  state- 
ment on  record  of  the  defendant's  appearance  in  court,  and 
was  at  one  time  erroneously  said  to  be  necessary  to  make 


OP   THE   PROCEEDINGS   IN   AN   ACTION.  169 

him  a  party  to  the  suit.^  The  appearance  may  be  stated  to 
be  in  person  or  by  attorney,  according  to  the  fact,  but  in 
pleas  to  the  jurisdiction  it  must  be  in  person.  Actual  and 
personal  appearance  in  open  court,  either  by  the  defendant 
or  by  his  attorney,  was  originally  necessary, ^  This,  how- 
ever, is  no  longer  required,  and  the  defendant's  appearance 
is  effected  by  making  a  formal  entry  of  the  fact  in  the  proper 
office,  or,  if  he  has  been  arrested,  by  his  giving  bail. ^  An 
entry  of  a  general  appearance  will  waive  objection  to  the 
jurisdiction  of  the  court  over  the  person  of  the  defendant,  to 
a  misnomer,  to  want  of  service  of  process,  and  to  formal 
defects.  If,  therefore,  the  defendant  desire  to  urge  these 
objections,  he  should  appear  specially^  and,  where  a  plea  to 
the  jurisdiction  is  interposed,  in  person.*  As  the  appear- 
ance was  at  first  actually  and  afterwards  constructively  in 
open  court,  it,  of  course,  always  purported  to  be  in  term 
time,  when  only  pleading  and  all  proceedings  whatever  in 
open  court  can  take  place. 

As  the  plaintiff  has,  by  the  institution  of  the  suit,  himself 
appeared,  no  formal  entry  of  his  appearance  is  made,  and, 
upon  appearance  of  the  defendant,  both  parties  are  con- 
sidered as  in  court,  and  the  pleadings  begin.  ^ 

The  Pleadings. 

"Pleadings  are  the  mutual  altercations  of  the  parties  to 
a  suit,  expressed  in  legal  form,  and  in  civil  actions  reduced 
to  writing.  In  a  more  limited  sense,  however,  '  the  plead- 
ings '  [in  the  plural]  comprehend  only  those  allegations,  or 
altercations,  which  are  subsequent  to  the  count  or  declara- 
tion. In  England  these  altercations  were  anciently  oral, 
having  been  offered  viva  voce  by  the  respective  parties  or 
their  counsel,  in  open  court;  as  is  still  generally  done  in 
the  pleadings  on  the  part  of  the  defendant,  or  prisoner,  in 
criminal  prosecutions.     And   hence   it   is   in   the    Norman 

1  Chit.  PI.  367.  St.  Louis,  &c.  Railway  v.  McBride,  141 

2  Steph.  PI.  58.  U.  S.  127. 

8  Thid.  61.  6  Tj^e    learning   on   the   Subject   of 

*  Knox  V.  Summers,  3  Cranch,  496;    Appearance  will  be  found  in  Com.  Dig. 

Title  Pleader,  B. 


3- 


160  COMMON-LAW  PLEADING. 

language,  in  which  most  of  the  ancient  books  of  the  English 
law  are  written,  the  pleadings  are  frequently  denominated 
the  parol;  though  for  centuries  past  all  pleadings  in  civil 
actions  have  been  required  to  be  written.  In  some  instances, 
however,  the  term  j^ai-ol  is  still  used  to  denote  the  entire 
pleadings  in  a  cause,  as  when  in  an  action  brought  against 
an  infant  heir,  on  an  obligation  of  his  ancestor's,  he  prays 
that  the  parol  may  demur,  i.  e.,  that  the  pleadings  may  be 
stayed,  till  he  shall  attain  full  age.  The  mutual  altercations, 
which  constitute  the  pleadings  in  civil  actions,  consist  of 
those  formal  allegations  and  denials,  which  are  offered  on 
one  side  for  the  purpose  of  maintaining  the  suit,  and  on  the 
other  for  the  purpose  of  defeating  it;  and  which,  generally 
speaking,  are  predicated  only  of  matters  oifact.  For  plead- 
ing is  practically  nothing  more  than  affirming  or  denying, 
in  a  formal  and  orderly  manner,  those  facts  which  consti- 
tute the  ground  of  the  plaintiff's  demand  and  of  the  defend- 
ant's defence.  Pleading  therefore  consists  in  merely  alleging 
matters  of  fact,  or  in  denying  what  is  alleged  as  such  by  the 
adverse  party. "  ^ 

But  we  have  very  imperfectly  described  Pleading  when 
we  have  said  that  it  consists  in  merely  affirming  or  denying 
facts.  Every  pleading  involves  a  syllogism  "of  which  the 
body  of  judicial  rules  is  the  major,  and  the  declaration  of 
facts  the  minor  premise.  "^  Even  the  final  judgment  of  a 
court  "may  be  described  as  a  conclusion  from  a  legal  syllo- 
gism. The  question.  Are  such  cases  as  that  alleged  entitled 
to  redress?  involves  the  major  premise ;  Is  this'cas^such  ? 
the  minor;  and  if  both  inquiries  are  answered  affirmatively, 
the  judgment  follows  as  a  necessary  inference. "  ^ 

In  pleading,  therefore,  every  averment  of  fact  implies 
some  principle  of  law  by  virtue  of  which  the  statement  of 
fact  becomes  a  claim  of  right.  If  it  does  not,  then  it  is 
demurrable,  i.  e.,  the  opposite  party  can  reply:  "  Whether 
your  averment  of  fact  he  true  or  not,  it  can  not  he  made  the 
foundation  of  any  legal  claim  against  me."     An  illustration 

1  Gould's  PI.  1,2.  8  Hare  on  Contracts,  43,  44. 

2  Anglo-Saxon  Law,  183. 


OP  THE   PROCEEDINGS   IN   AN   ACTION.  161 

will  make  this  clear.  In  an  action  brought  for  a  trespass 
committed  upon  land,  we  may  suppose  the  plaintiff  to  say : 
^^  Against  him  who  has  forcibly  eyitered  upon  my  land,  I  have 
a  right  by  law  to  recover  damages :  The  defendant  has  forcibly 
entered  upon  my  land  :  Therefore,  against  him  I  have  a  right 
by  law  to  recover  damages. "  We  may  suppose  the  defendant 
to  answer:  "i/"  he  upon  ivhose  land  I  have  forcibly  entered, 
releases  to  me  his  right  of  action  for  such  entry,  he  has  thence- 
forth no  right  by  laiv  to  recover  damages  for  such  entry  against 
me :  But  the  plaintiff  has  released  to  me  his  right  of  action  for 
my  entry  upon  his  land  :  Therefore  he  has,  by  law,  no  right 
to  recover  damages  for  that  cause  against  me. "  To  this  the 
plaintiff  may  have  his  reply  ready  as  follows:  '■'■  A  release 
extorted  from  me  by  duress  does  not  in  law  destroy  any  pre- 
existing right  of  mine  to  recover  damages :  But  the  release 
pleaded  by  the  defendant  was  extorted  from  me  by  duress  : 
Therefore  that  release  does  7iot  destroy  my  right  to  recover 
damages  against  him. "  ^ 

In  this  process,  which  might  be  prolonged,  the  major 
premise,  containing  the  affirmation  of  the  rule  of  law  relied 
upon  by  the  plaintiff  or  by  the  defendant  in  their  respective 
pleadings,  has  been  expressed;  the  pleadings  are,  in  fact, 
made  substantially  as  follows :  The  defendant  has  forcibly 
entered  upon  my  land.  To  which  the  defendant  answers : 
The  plaintiff  has  released  to  me  his  right  of  action.  Whereto 
the  plaintiff  replies :  That  release  was  extorted  from  ine  by 
duress.  It  is  thus  seen  that  the  pleadings  in  the  case  sup- 
posed have  consisted  only  of  the  several  minor  premises, 
each  asserting  matter  of  fact,  and  that  the  major  premise, 
involving  the  rule  of  law  relied  upon  to  give  legal  vitality 
to  its  minor,  is  in  each  case  only  implied. 

Let  us  now  suppose  a  case  in  which  the  minor  premise  is 
this :  "  For  ten  years  I  conducted  a  profitable  school  in  Loyidon, 
when  the  defendant  established  a  new  school  near  mine,  and 
my  pupils  deserted  me  and  resorted  to  his  school  to  my  great 
loss. "     Here  it  is  at  once  perceived   that   there  is  no  valid 

1  Gould's  PI.  chap.  I. 
11 


162  COMMON-LAW   PLEADING. 

major  premise  implied,  and  hence  the  plaintiff's  averment 
of  fact  is  impotent,   and  therefore  demurrable. 

The  facts  are  alleged  because  they  are  supposed  to  be 
unknown  to  the  judges.  But,  as  these  judges  are  presumed 
to  know  judicially  what  the  law  applicable  to  any  state  of 
facts  is,  it  is  not  necessary  to  allege  the  general  rules  of  the 
law. 

As  has  been  said,  these  pleadings  were  originally  spoken 
by  the  parties  themselves  or  by  their  counsel  in  open  court. ^ 
They  were  then  minuted  down  by  the  chief  clerk  or  protho- 
notary,  and,  together  with  the  entries  from  time  to  time 
made  touching  the  cause,  they  constituted  the  record  in  the 
cause. 

■  J  This  record,  when  complete,  was  preserved  as  ^  jyerjjetual^ 

■  intrinsic,  and  exclusively  admissible  testimony  of  all  the 
judicial  transactions  which  it  comprised.  From  the  begin- 
ning of  the  reign  of  Richard  I.  (1189)  commences  a  still 
extant  series  of  records  down  to  the  present  day ;  and  such, 
as  far  back  as  can  be  traced,  has  always  been  the  stable  and 
authentic  quality  of  these  documents  in  contemplation  of  law.^ 

As  this  record  was  originally  the  contemporaneous  minute 
made  by  the  prothonotary,  it  was  entered  as  a  narrative  in 
the  third  person,  and  hence  the  pleadings  follow  the  same 
form  of  expression,  e.  g.,  "  C.  D  conies  and  defends  the  wrong 
and  injury,  ^^c,  and  says,  ^c." 

It  was  the  office  of  the  judges  to  direct  and  control  this 
oral  contention  conducted  before  them.  This  they  so  man- 
aged as  to  compel  the  disputants  to  come  finally  to  some 
specific  fact,  affirmed  by  one  and  denied  by  the  other,  or  to 
some  disputed  point  of  law.  Then  the  parties  were  said  to 
be  at  issue  (ad  exitum,  i.  e.,  at  the  end  of  their  pleading). 
The  question  so  determined  upon  was  specifically  called 
The  Issue,  and  was,  from  its  nature,  either  an  issue  in  fact, 
or  an  issue  in  law.  The  latter  the  judges  themselves  decided ; 
the  former  was  referred  to  such  one  of  the  various  methods 

^  1  Interesting  examples  of  this  early    219-223  ;  also  bv  TVarren  in  his  Law 
viva  voce  pleading  are  given  by  Reeves    Studies,  722,  723,  note, 
in  his  History  of  the  English  Law,  II.  2  Steph.  PI.  6L 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  163 

of  trials  then  practised  as  the  court  thought  applicable,  or 
was,  when  proper,  by  mutual  agreement  of  the  parties, 
referred  to  a  trial  by  jury.^ 

Continuances. 

These  proceedings  of  course  required  time,  and  yet  in 
contemplation  of  law  the  parties  were  supposed  to  be  always 
in  court  ready  to  urge  their  respective  contentions.  To 
meet  this  difficulty,  the  law  allowed  the  proceedings  to  be 
adjourned  over  from  one  term  to  another,  or  from  one  day 
to  another  in  the  same  term.  When  this  happened,  an 
entry  of  an  adjournment  to  a  given  day,  and  of  its  cause, 
was  made  on  the  parchment  roll  (the  record),  and  by  that 
entry  the  parties  were  also  appointed  to  re-appear  on  the 
given  day  in  court. 

Such  adjournment  was  called  a  continuance.  If  any 
interval  took  place  without  such  an  adjournment,  duly 
obtained  and  entered,  the  break  or  chasm  thus  occasioned 
was  called  a  discontinuance,  and  the  cause  was  considered 
as  out  of  court  by  the  interruption,  and  was  not  allowed 
afterward  to  proceed.  ^ 

It  was  probably  in  the  middle  of  the  reign  of  Edward  III. 
(1327-1377)  that  pleadings  ceased  to  be  had  orally  or  in 
open  court.  Gradually  the  pleader  discontinued  the  oral 
delivery,  and  in  lieu  of  it  entered  his  statement,  in  the 
first  instance,  upon  the  parchment  roll  on  which  the  record 
used  to  be  drawn  up.  The  pleader  of  the  other  party  had 
access  to  this  roll  in  order  that  he  might  prepare  his  answer, 
which  he  afterwards  entered  in  the  same  manner,  and  the 
roll  thus  became  both  the  pleadings  themselves  and  also 
their  record.  Later,  as  more  convenient,  the  pleadings 
were  first  put  on  paper,  then  delivered  in  that  shape  to  the 
adverse  party,  or  filed  in  the  proper  court  office,  and  not 
entered  of  record  until  a  subsequent  stage  of  the  cause.^ 
These  pleadings  so  written  are  framed  upon  the  same  prin- 
ciples as  those  which  governed  the   oral  allegations.     The 

1  Steph.  PI.  59.  2  Hid.  60.  8  md.  63. 


164  COMMON-LAW  PLEADING. 

parties  are  made  to  come  to  issue  exactly  in  the  same  manner 
as  when  really  opposed  to  each  other  in  verbal  altercation 
at  the  bar  of  the  court;  and  all  the  rules  which  the  judges 
of  former  times  prescribed  to  the  actual  disputants  before 
them  are,  as  far  as  possible,  still  enforced  with  respect  to 
these  paper  pleadings.^ 

The  oral  pleadings  could  formerly  be  delivered  by  none 
but  regular  advocates,  and  so  it  is  now  necessary  that  these 
paper  pleadings  should  be  signed  by  a  barrister;  in  fact, 
however,  they  are  frequently  prepared  by  persons  of  learn- 
ing, not  barristers,  who  are  known  by  the  name  of  special 
pleaders.^ 

Having  learned  generally  what  the  pleadings  in  a  cause 
are,  we  must  next  consider  their  respective  titles,  functions, 
and  order.  We  have  reached  the  point  when  the  parties 
are  in  court.  As  they  stand  opposite  to  each  other,  it  next 
becomes  necessary  for  the  plaintiff  to  state  his  case  by  his 
own  mouth  or  by  that  of  his  pleader.  His  statement  is 
called  in  Latin  narratio  (story  or  narrative),  in  French 
conte  ;  in  English  it  was  probably  first  called  tale,^  but  later 
cou7it  in  real,  and  declaration  in  personal  and  mixed  actions; 
ultimately  the  term  "declaration"  was  applied  commonly  in 
all  actions. 

The  Declaration. 

Originally  the  declaration  was  "a  formal  statement 
bristling  with  sacramental  words,  an  omission  of  which 
would  be  fatal.  ...  In  a  civil  action  begun  by  writ  the 
plaintiff's  count  must  not  depart  by  a  hair's  breadth  from 
the  writ,  or  there  will  be  a  variance  of  which  the  defend- 
ant will  take  advantage."*  In  Anglo-Saxon  times,  when, 
according  to  the  old  procedure,  a  defendant  had  to  repeat 
the  claim  of  the  plaintiff  and  to  deny  it  word  for  word,  he 
lost  his  suit  if  he  stammered  in  the   repetition.^ 

The  brief  statement  of  the  original  writ  must  be  expanded, 
and  also  made  more  detailed,  by  the  declaration.     "  Thus  a 

1  Steph.  PI.  64.  *  Ibid.  II.  603. 

2  Ibid.  64.  5  Anglo-Saxon  Law,  183. 
8  P.  &  M.  Hist.  II.  602. 


OP   THE   PROCEEDINGS   IN   AN   ACTION,  165 

writ  of  Debt  will  merely  tell  William  that  he  must  say  why 
he  has  not  paid  fifty  marks  which  he  owes  to  Alan  and 
unjustly  detains;  but  the  count  [declaration]  will  set  forth 
how  on  a  certain  day  came  this  William  to  this  Alan  and 
asked  for  a  loan  of  fifty  marks,  how  the  loan  was  made  and 
was  to  have  been  repaid  on  a  certain  day,  and  how,  despite 
frequent  requests,  William  has  refused  and  still  refuses  to 
pay  it.  The  count  on  a  Writ  of  Right  will  often  be  an 
elaborate  history.  A  seisin  as  of  fee  and  of  right  with  a 
taking  of  esplees  [profits  or  produce  of  the  land]  will  be 
attributed  to  some  ancestor  of  the  demandant  [plaintiff], 
and  then  the  descent  of  this  right  will  be  traced  down  a 
pedigree  from  which  no  step  may  be  omitted."^ 

The  pleading  is  said  to  begin  with  the  declaration  or 
count,  which  is  a  statement  on  the  part  of  the  plaintiff  of 
his  cause  of  action.  In  the  declaration,  the  plaintiff,  as  we 
have  seen,  states  the  nature  and  quality  of  his  case  more 
fully  than  in  the  original  writ,  but  still  in  strict  conformity 
with  the  tenor  of  that  instrument.^ 

This  will  be  more  readily  understood  by  a  consideration 
of  two  forms  of  declarations,  corresponding  with  the  speci- 
mens of  original  writs  already  given. 

Declaration  in  Debt. 
On  a  Bond. 
In  the  King's  Bench,  Term,  in  the  year  of 

the  reign  of  King  George  the  Fourth : 
Middlesex,  to  wit,  C.  D.  was  summoned  to  answer  A.  B.  of  a 
plea,  that  he  render  to  the  said  A.  B.  the  sum  of  pounds, 

of  good  and  lawful  money  of  Great  Britain,  which  he  owes  to  and 
unjustly  detains  from  him.      And  thereupon  the  said  A.  B.  by 
,  his  attorney,  complains  :  For  That  Whereas  the  said 
C.  D.  heretofore,  to  wit,  on  the  day  of  ,  in  the  year  of 

our  Lord  ,  at  ,  in  the  County  of  ,  by  his  cer- 

tain writing  obligatory,  sealed  with  his  seal,  and  now  shown  to 
the  court  here  (the  date  whereof  is  the  day  and  year  aforesaid) 
acknowledged  himself  to  be  held  and  firmly  bound  to  the  said 
A.  B.  in  the  sum  of  pounds,  above  demanded,  to  be  paid  to 

the  said  A.  B.      Yet  the  said  C.  D.  (although  often  requested) 

1  P.  &  M.  Hist.  II.  603.  2  steph.  PI.  65. 


166  COMMON-LAW  PLEADING. 

hatli  not  as  yet  paid  the  said  sum  of  pounds  above  de- 

manded, or  any  part  thereof,  to  the  said  A.  B.  ;  but  so  to  do  hath 
hitherto  wholly  refused  and  still  refuses,  to  the  damage  of 
the  said  A.  B.  of  pounds ;   and  therefore  he  brings  his 

suit,  &c. 

Declaration  in  Trespass  (for  an  Assault  and  Battery). 

In  the  King's  Bench,  Term,  in  the  year  of  the  reign 

of  King  George  the  Fourth  : 

Middlesex,  to  wit,  C.  D.  was  attached  to  answer  A.  B.  of  a 

plea,  wherefore  he,  the  said  C.  D.,  with  force  and  arms  at  , 

in  the  county  of  ,  made  an  assault  upon  the  said  A.  B.,  and 

beat,  wounded,  and  ill-treated  him,  so  that  his  life  was  despaired 

of,  and  other  wrongs  to  him  there  did,  to  the  damage  of  the  said 

A.  B.  and  against  the  peace  of  our  Lord  the  now  King.     And 

thereupon  the  said  A.  B.,  by  ,  his  attorney,  complains  : 

For  that  the  said  C.  D.  heretofore,  to  wit,  on  the  day  of 

,  in  the  year  of  our  Lord         ,  with  force  and  arms,   at 

aforesaid,  in  the  county  aforesaid,  made  an  assault  upon 

the  said  A.  B.  and  then  and  there  beat,  wounded,  and  ill-treated 

him,  so  that  his  life  was  despaired  of,  and  other  wrongs  to  the 

said  A.  B.  then  and  there  did,  against  the  peace  pf  our  said  Lord 

the  King,  and  to  the  damage  of  the  said  A.  B.  of  pounds; 

and  therefore  he  brings  his  suit,  &c. 

Similar  declarations  to  the  two  preceding  would  to-day  in 
the  English  Supreme  Court  of  Judicature  be  in  the  following 
form :  — 

Action  on  an  Annuity  Bond. 

1.  The  plaintiff's  claim  is  for  principal  and  interest  due  upon 
the  defendant's  bond  to  the  pbintiff,  dated  the  first  day  of  Jan- 
uary, 1883,  and  conditioned  for  payment  to  the  plaintiff  of  £150 
half-yearly,  on  the  1st  of  July  and  the  1st  of  January  in  every 
year  during  the  life  of  the  plaintiff. 

2.  Two  instalments,  of  £150  each,  due  on  the  1st  of  July, 
1883,  and  the  1st  of  January,  1884,  are  due  and  unpaid. 

Particulars  :  — 

Principal £300    0   0 

"Interest 500 

£305    0   0 
The  plaintiff  claims  £305. 


OF   THE   PROCEEDINGS  IN   AN   ACTION.  167 

Action  for  Assault  and  Battery. 

1.  The  plaintiff  has  suffered  damage  from  personal  injuries  to 
the  plaintiff,  caused  by  the  defendant  assaulting  him  on  the  1st  of 
May,  1882,  and  beating  him  about  the  head  and  shoulders. 

Particulars  of  expenses :  — 

Mr.  Jones,  Surgeon £20    0    0 

The  plaintiff  claims  £100.* 

It  does  not  consist  with  the  purpose  of  this  work  to  con- 
sider in  detail  the  forms  of  declarations  proper  to  the  various 
forms  of  actions.  For  these,  reference  must  be  had  to  books 
of  Practice  and  of  Forms.  It  is  sufficient  here  to  say  gen- 
erally that  "the  declaration  must  allege  all  the  circumstances 
necessary  for  the  support  of  the  action,  and  contain  a  full, 
regular,  and  methodical  statement  of  the  injury  which  the 
plaintiff  has  sustained,  and  the  time  and  place,  and  other 
circumstances,  with  such  precision,  certainty,  and  clearness, 
that  the  defendant,  knowing  what  he  is  called  upon  to 
answer,  may  be  able  to  plead  a  direct  and  unequivocal  pica, 
and  that  the  jury  may  be  able  to  give  a  complete  verdict 
upon  the  issue,  and  that  the  court,  consistently  with  the  rules 
of  law,  may  give  a  certain  and  distinct  judgment  upon  the 
premises."  ^  The  formal  parts  of  the  declaration  will  be  con- 
sidered hereafter,  in  connection  with  certain  definite  rules 
of  pleading,  and  others  of  these  rules  will  prescribe  the  man- 
ner of  making  those  substantial  averments  upon  which  the 
cause  of  action  must  rest.  The  facts  set  forth  by  these  aver- 
ments of  course  vary  in  each  particular  case.  Their  legal 
virtue  is  matter  of  substantive  rather  than  of  adjective  law, 
and  consequently  not  the  subject  of  our  study  here. 

Proceeding  by  Bill. 

Proceeding  by  bill,  instead  of  by  declaration,  without  the 
suing  out  of  an  original  writ,  requires  only  a  brief  expla- 
nation. We  have  seen  how  the  King's  Bench,  by  its  process 
of  hill  of  Middlesex  and  latitat,  and  the  Exchequer  by  its 

1  Cnnnimrhnm    &   Mattinson's    Pre-         "  Cliit.  PI.  229. 
cedents  (2d  ed.),  134,  193. 


168  COMMON-LAW   PLEADING. 

attachment  of 'privilege  (quo  minus),  extended  their  respec- 
tive   civil    jurisdictions   in   personal   actions,    and   brought 
defendants   within   their   control   bj  process  founded  upon 
fictions.     We   have   further   learned   that   such   defendants 
could,  when  once  within  the  jurisdiction  of  these  courts,  be 
proceeded   against  by  bill   instead  of  by  declaration.     The 
I    billj  as  it  is  called,  filed  in  such  cases  is  exactly  equivalent 
'    to  a  declaration,  differing  from  it  only  in  some  formal  words 
'    at  the  commencement  and  conclusion;  this  bill  is,  therefore, 
i    considered  as  belonging  to  one  of  the  regular  forms  of  actions 
j    as  strictly  as  if  an  original  writ  had  issued  to  determine  the 
i    form.^     It  was  used  of  necessity  because  a  declaration  was 
I    regularly  preceded  by  an  original  writ,  and  in  these  cases 
\    there  was  no  original. 

Production  of  Suit. 

We  must  not  leave  this  subject  without  calling  attention 

Lto  the  concluding  words  of  the  declaration :  And  therefore  he 
brings  suit  and  good  proofs 

"It  is  not  enough  that  the  plaintiff  should  tell  his  tale: 
he  must  offer  to  prove  its  truth.  In  an  Appeal  of  Felony  he 
offers  '  proof  by  his  body ; '  in  a  Writ  of  Right  he  offers  proof 
by  the  body  of  a  certain  free  man  of  his,  A.  B.  by  name, 
who,  or  whose  father,  witnessed  the  seisin  that  has  been 
alleged ;  in  other  cases  he  produces  a  suit  (secta)  of  wit- 
nesses. No  one  is  entitled  to  an  answer  if  he  ol!ers  nothing 
but  his  bare  assertion,  his  nude  parole.  .  .  .  What  the 
plaintiff  relies  on  as  a  support  for  his  word  is  suit.  This 
suggests  that  the  suitors  (sectatores)  whom  the  plaintiff 
produces  in  a  civil  action  have  been,  at  least  in  theory, 
men  who  along  with  him  have  pursued  the  defendant.  .  .  . 
When  we  first  obtain  records  from  the  King's  Court,  the  pro- 
duction of  suit  is  beginning  to  lose  its  importance,  and  we 
know  little  as  to  what  the  suitors  did  or  said  when  they  had 
thus  been  introduced  to  the  court.  But  we  may  gather 
from  the  Norman  books  that  each  of  them  in  turn  ought  to 
have  stepped  forward  and  said,  '  This  I  saw  and  heard,  and 

1  Steph.  PI.  76.  a  Evans'  PI.  29. 


OP  THE   PROCEEDINGS   IN   AN   ACTION.  1C9 

(by  way  of  proof)  I  am  ready  to  do  what  the  court  shall 
award. '  At  this  stage  the  suitors  make  no  oath  and  are 
not  questioned.  They  are  not  yet  making  proof;  the  proof 
will  not  he  made  until  the  court  has  spoken  after  hearing  ivhat 
the  defendant  has  to  say. "  ^  As  to  the  number  of  thcse\ 
suitors  requisite  when  no  battle  was  offered,  they  could  not] 
be  less  than  two;  the  rule  was  testis  unus,  testis  7iullus  (one\ 
witness,  no  witness),  and  was  thought  to  be  deduced  from 
the  Bible.     There  might  be  as  many  as  thirteen  suitors.^ 

The  Defence. 

"  The  time  has  now  come  when  the  defendant  must  speak,   | 
and  as  a  general  rule  the  only  plea  that  is  open  to  him  is  a   | 
flat   denial    of   all   that   the   plaintiff  has    said.     He  must 
'  defend '  all  of  it,  and  in  this  context  to  defend  means  to 
deyiy.     In  the  past  he  has  been  bound  to  '  defend  '  the  charge 
word  by  word,  with  painful  accuracy.     By  the  end  of  the  thir- 
teenth century  he  is  allowed  to  employ  a  more  general  form 
of  negation."     Gradually  this  defence  becomes  a  mere  form,    | 
but   it  remains  to  tell  us  of  a  time,   before  the  science   of    . 
special  pleading  was  conceived,   when  a  downright   No !    (a     \ 
thwertutnay^    as  it  was  called)  was  the  one  possible  answer 
to  the  plaintiff's  tale;  until  our  own  day  it  remained   tli©"' 
indispensable  preliminary  to  every  possible  answer.^ 

Examination  of  the  Plaintiff's  Suit. 

If  the  defendant  wished  to  rely  upon  this  original  com- 
mon traverse,  this  thereto-nay,  or  defence,  he  might  demandl 
an  examination  of  the  plaintiff's  suit.     He  may  object  that  J 
no  suit  at  all  has  been  produced.     In  such  cases  he  insists] 
that  he  is  not  bound  to  answer  the  nude  parole  (naked  word)' 
of  the  plaintiff.      If  suit  has  been  produced,  the  defendant 
can  demand  that  it  be  examined,  but  in  so  doing  he  aban- 
dons every  other  defence.     This  demand  would  have  led  to 
a  purely  formal  and  indisputable  oath  on  the   part  of  the 
suitors,   and  if  they  duly  pronounced  the  necessary  formal 

1  p.  &  M.  Hist.  II.  603,  604 ;  Thay.  2  p.  &  m.  Hist.  IT.  605. 

Jury,  10-13.  »  Ibid.  II.  605,  606. 


A 


170  COMMON-LAW   PLEADING. 

words  of  this  oath,  the  defendant  lost  his  case.     But  later 

these   suitors  could,    on  the  demand  of  the  defendant,   be 

examined  one  by  one  by  the  court  to  discover  whether  they 

really  knew  anything  about  the  facts  of  the  plaintiff's  claim. 

( If  they  break  down  under  examination,   and  disclose  their 

\  ignorance  of  the  alleged  facts,  or  disagree,  the  suit  is  null 

'and  the  plaintiff  fails.     If  they  agree,  then  the  defendant's 

cause   is   lost   by  the   examination   which   he   has   himself 

demanded.  1     This  examination  of  the  plaintiff's  suit  begins 

to  be  questioned  as  early  as  1314,  and  finally  in  1343  it  was 

idenied  as  antiquated ;  yet  the  allegation  of  the  production 

(of  suit  was  continued  on  as  a  form  to  our  own  day.^ 

Offer  op  Proof. 

When  the  defendant  did  not  wish  to  stake  his  case  upon 
the  examination  of  the  plaintiff's  suit,  he  had  to  offer  to 
make  good  his  downright  No !  When  battle  has  been  offered, 
he  must  accept  the  offer.  Having  verbally  defended  the 
(iharge,  he  professes  his  willingness  to  again  defend  it,  in 
some  cases  by  his  own  body,  in  others  by  the  body  of  his 
freeman,  "When  and  where  the  court  shall  consider  that 
.defend  he  ought."  Where  the  plaintiff  has  not  offered 
battle,  the  defendant  will  follow  up  his  defence  by  the 
words :  "  And  this  he  is  ready  and  willing  to  defend  when 
and  where  he  ought  as  the  court  shall  consider."  In  the 
former  case  the  court  will  award  a  wager  of  battle.  In  the 
latter  it  will  award  the  defendant  some  other  law,  to  wit: 
an  oath  with  helpers ;  the  defendant  must  at  once  tvage  this 
law,  that  is,  find  gage  and  pledges  that  he  will,  on  a  later 
day,  make  this  law  by  producing  compurgators  or  oath- 
helpers  to  sustain  by  their  oaths  his  denial  of  the  plaintiff's 
claim,  3 

"  Such  have  been  the  modes  whereby  a  man  made  good  his 
thwertutnay.  In  Bracton's  day  {temp.  Hen.  III.),  they  are 
being  concealed  from  view  by  an  overgrowth  of  special  plead- 
ing and  the  verdicts  of  jurors.      But  the  background  of  the 

1  P.  &  M.  Hist.  II.  607 ;  Thay.  Jury,  2  Thay.  Jurv,  15. 

12,15.  8  P.  &  M.  Hist.  11.  608. 


OP   THE   PROCEEDINGS   IN   AN   ACTION.  171 

law  of  pleading  and  trial  still  is  this,  that  the  defendant 
must  take  his  stand  upon  a  downright  No,  whereupon  there 
will  be  a  wager  of  battle  or  of  some  other  law."  ^ 

Origin  op  Special  Pleading. 

Although  it  was  not  until  a  centur}'  after  Bracton  that 
English  lawyers  had  grasped  the  first  principles  of  that 
system  of  pleading  which,  in  the  future  was  to  become  the 
most  exact,  if  the  most  occult,  of  the  sciences, ^  yet  already 
the  idea  of  the  exceptio  of  the  Roman  law  was  developing  in 
England. 

According  to  Roman  law  the  prgetor  in  some  cases  denied 
to  a  person  having  a  perfect  legal  right  his  proper  remedy. 
The  plaintiff's  claim  might  be  valid  by  the  civil  law, 
and  yet  to  give  effect  to  it  might  work  injustice.  In 
order  to  prevent  this  result,  the  praetor  recognized  a 
merely  equitable  defence,  which  was  called  an  exceptio 
(exception).^  The  English  medieval  lawyer  was  familiar 
with  the  well-known  language  of  Justinian :  "  It  often 
Jiapjyens  that  although  the  action  which  the  jwZa/;^^!/^  prose-  i 
cutes  is  lawful,  nevertheless  it  is  utijnst  to  p)rosecute  it  againsty 
the  particular  defendant. "  * 

He,  however,  knew  little  or  nothing  of  any  system  of 
equity  as  contrasted  with  a  system  of  law,  and  therefore 
could  not  mark  off  any  proper  sphere  for  these  exceptional 
cases  in  which  it  was  unjust  to  pursue  a  legal  right.  Hence, 
he  was  led  to  believe  that  every  kind  of  answer  to  an  action 
was  an  excejytio,  and  that  Roman  law  allowed  an  almost 
unlimited  license  to  the  pleader  of  exceptions.  "This  new 
idea  set  up  a  ferment  in  England  and  elsewhere.  When 
the  old  rigid  rules  had  once  been  infringed,  our  records 
became  turbid  with  exceptions."^  The  right  of  exception 
first  obtained  a  firm  footing  in  the  then  new  procedure  of 
the  Petty  Assizes,  of  which  we  shall  speak  later.  In  certain 
cases,  from  the  very  nature  of  the  procedure,  it  was  evident 

1  P.  &  M.  Hist.  II.  608.  4  Inst.  4,  13  pr. 

2  Ibid.  II.  609.  6  p.  &  M.  Hist.  II.  609. 
*  Hunter's  Roman  Law,  40. 


172  COMMON-LAW   PLEADING. 

from  the  outset  that  gross  injustice  would  be  done  the 
defendant.  1  Hence  he  was  allowed  to  assert  that  for  a  given 
reason  the  assize  ought  not  to  proceed,  and  that  assertion 
was  an  exceptio,  and  was  also  a  special  plea.  "From  the 
province  of  the  Petty  Assizes  the  exceptio  spread  with  great 
rapidity  throughout  the  domain  of  the  other  actions.  For  one 
thing,  the  old  reasons  for  refusing  to  answer  were  brought 
under  the  new  rubric.  From  of  old  a  defendant  must  have  had 
some  power  of  urging  such  reasons;  of  saying,  for  example, 
/  will  7iot  answer,  for  tJus  court  is  not  competent  to  decide 
this  cause,  or  /  will  not  answer  you,  for  you  are  an  outlaw. 
Under  the  influence  of  the  Romano-canonical  procedure 
these  preliminary  objections  were  now  called  exceptions; 
they  were  '  temporary  '  or  '  dilatory  '  exceptions.  A  classifi- 
cation of  exceptions  and  a  theory  about  the  order  in  which 
they  should  be  propounded  were  borrowed.  First  you  must 
except  tothe  jurisdiction  of  the  court,  then  to  the  person  of  the 
judge,  then  to  the  writ,  then  to  the  person  of  the  plaintiff, 
then  to  the  person  of  the  defendant,  and  so  on.  ...  In  a 
very  short  time  we  find  the  defendant  propounding,  by  way 
of  exception,  pleas  that  we  cannot  regard  as  mere  prelimi- 
nary objections,  for  they  are  directed  to  the  heart  of  the 
plaintiff's  case ;  these  are  '  peremptory '  or  '  perpetual '  ex- 
ceptions, the  '  special  pleas  in  bar  '  of  later  law.  For  a  while 
the  utmost  laxity  prevails.  Of  this  the  best  examples  are  to 
be  found  among  the  Appeals.  By  way  of  exception  to  an 
appeal  of  homicide,  the  appellee  is  suffered  to  plead  that  the 
appeal  is  not  a  '  true  '  [that  is,  not  a  bona  fide]  appeal  but  is 
the  outcome  of  spite  and  hatred  [odium  et  atia'\.  A  climax 
seems  to  be  reached  when  an  appellee  pleads  an  alihi  by  way 
of  exceptio;  a  climax,  we  say,  for  the  plea  of  alihi  can  be 
nothing  but  an  argumentative  traverse  of  the  charge  that  has 
been  made  against  him,  a  charge  that  he  will  already  have 
traversed   in   large   and   explicit    words   by  his   '  defence. ' 

1  A  son  and  heir  might  enter  upon  cover  the  land  from  his  feoffee,  yet  he 

the  father's  land  at  liis  death,  and  then  could  do  it  if  in  such  case  a  mort  d'  an- 

enfeoff   a  third   person.     It  would   be  cestor  were  allowed  to  proceed.     P.  &  iL 

scandalous  if   this  son  could  then  re-  Hist.  I.  610. 


OP  THE   PROCEEDINGS   IN   AN    ACTION.  173 

And  here  we  may  see  how  exotic  the  exceptio  once  was, 
though  it  is  now  flourishing  but  too  luxuriantly  in  our  soil: 
it  is  always,  or  almost  always,  preceded  by  a  thwertutnay^ 
that  is,  by  a  flat  denial  of  the  plaintiff's  assertions.  The 
exception  may  be  met  by  a  replication,  the  replication  by  a 
triplication,  and  so  on  ad  infinitum.  We  may  occasionally 
find  long  debates  between  the  parties.  Not  only  are  they 
long,  but,  if  judged  by  the  standard  of  a  later  time,  they  are 
loose  and  irregular.  The  pleaders  must  be  charged  with 
many  faults  which  would  have  shocked  their  successors; 
they  habitually  '  plead  evidence,'  they  are  guilty  of  argu- 
mentativeness and  duplicity.  The  curious  rule  that  in  later 
days  will  confine  a  man  to  a  single  '  plea  in  bar '  appears 
already  in  Bracton,  justified  by  the  remark  that  a  litignnt 
must  not  use  two  staves  to  defend  himself  withal.  But 
this  rule  had  not  always  been  observed ;  defendants  were 
allowed  a  second  staff,  at  all  events  if  when  using  the  first 
they  expressly  reserved  the  right  of  picking  up  another. 
These  men  are  drunk  with  the  new  wine  of  Romanism: 
such  may  be  the  comment  which  a  modern  reader  will  make 
when  for  the  first  time  he  watches  the  exploits  of  our  ancient 
pleaders.  But  we  ought  to  see  that  there  is  an  under-current 
of  good  sense  running  beneath  their  vagaries.  The  exten- 
sion of  the  exceptio  is  the  extension  of  a  new  mode  of  jjroof ; 
it  is  the  extension  of  a  mode  of  proof  which  will  become 
famous  under  the  name  of  trial  hy  jury,^^'^  as  we  shall  see 
more  fully  hereafter. 

Here,  plainly,  we  have  the  birth  of  special  pleading,  and 
the  history  of  its  earliest  years.  The  defence,  instead  of 
being  "one  of  those  verbal  subtleties,  by  which  the  science 
of  special  pleading  was,  in  many  instances,  anciently  dis- 
graced," ^  was,  as  has  been  discovered  since  Stephen  wrote, 
the  original  denial  by  the  defendant  of  the  plaintiff's  claim. 
It  existed  before  special  pleading  came  into  being,  and  for 
centuries  after  the  birth  of  the  latter  the  special  plea  had  to 
be  almost  invariably  preceded  by  the  unequivocal  and  direct 
defence  of  the  earlier  law. 

1  P.  &  M.  Hist.  II.  611-614.  2  steph.  PI.  377. 


17-i  COMMON-LAW  PLEADING. 


The  Demurrer. 


The  plaintiff  having  made  or  filed  his  declaration,  and 
the  defendant  having  duly  defended  the  same,  the  latter  had 
next  to  consider  the  specific  nature  of  his  response  to  the 
attack  of  the  former.  We  have  seen  that  every  averment  of 
fact  implies  a  rule  of  law  on  which  it  relies  for  its  potency. 
The  first  care,  therefore,  of  the  defendant,  or  of  his  pleader, 
was  to  examine  the  declaration  narrowly,  and  to  determine 
whether  the  facts  averred  in  it,  supposing  them  to  be  true 
as  averred,  state  a  legal  cause  of  action.  If  the  matter  of 
the  plaintiff's  declaration  be  insufficient  in  law,  then  the 
defendant  demurs  to  the  declaration. 

"A  demurrer  cometh  of  the  Latin  word  demorari^  to 
abide ;  and  therefore  he  which  demurreth  in  law,  is  said,  he 
that  abideth  in  law;  moratur  or  demoratur  in  lege.'^  ^  To 
demur,  therefore,  is  to  rest  or  pmise ;  and  the  party  who 
demurs  in  law  upon  his  adversary's  pleading  rests  or  pauses 
upon  it  as  requiring  no  answer  by  reason  of  its  supposed 
Jegal  insufficiency.  A  demurrer,  therefore,  is  no  plea,  but 
lis,  on  the  contrary,  an  excuse  for  not  pleading. - 
*  The  defect  apparent  upon  the  face  of  the  plaintiff's  decla- 
ration may  be  one  of  substance,  in  that  no  legal  cause  of 
action  is  stated,  or  one  of  form,  in  that  the  declaration  is 
not  framed  according  to  the  rules  of  pleading.  Under  the 
common  law,  either  defect  was  a  ground  of  demurrer;  the 
objection  for  defect  of  substance  was  called  a  general,  and 
that  for  want  of  form  a  special  demurrer.  The  following  is 
an  instance  of  the  former :  — 

General  Dejiurrer  to  the  Declaration  (in  Debt). 

In  the  King's  Bench,  Term,  in  the  year  of  the  reign 

of  King  George  the  Fourth  : 

C.  D.  "^        And  the  said  C.  D.,  by  ,  his  attorney,  comes  and 

ats.    V    defends  the  wrong  and  injury,  when,  &c.  ;  and  saj'S  that 

A.  B.  .)■   the  said  declaration  and  the  matters  therein  contained,  in 

i  Co.  Litt.  71,  b.  2  Haiton  et  d.  v.  Jeffreys,  10  Mod. 

E.  280. 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  175 

manner  and  form  as  the  same  are  above  stated  and  set  forth,  are 
not  sufficient  in  law  for  the  said  A.  B.  to  have  or  maintain  his 
aforesaid  action  against  him,  the  said  C.  D. ;  and  that  he,  the 
said  C.  D,,  is  not  bound  by  the  law  of  the  land  to  answer  the 
same.  And  this  he  is  ready  to  verify.  Wherefore,  for  want  of 
a  sufficient  declaration  in  this  behalf,  the  said  C.  D.  prays  judg- 
ment, and  that  the  said  A.  B.  may  be  barred  from  having  or 
maintaining  his  aforesaid  action  against  him,  &c."  ^ 

Here  the  defendant  says  plainly  that  he  is  not  bound  to 
answer  the  declaration,  and  prays  the  judgment  of  the  court, 
which  judgment  he  will  await.  The  subject  of  the  demurrer 
will  be  more  fully  discussed  hereafter.  It  is  proper  to  add 
here  that  special  demurrers  have  been  quite  universally 
abolished. 

Pleas. 

If  the  defendant  does  not  demur,  he  must  answer  the 
declaration  by  counter-averments  of  fact,  and  in  doing  this 
he  is  said  to  plead,  as  distinguished  from  demurring,  and 
his  answer  of  fact  so  made  is  called  the  plea. 

Pleas  are  divided  into  pleas  Dilatory  and  Peremptory ; 
this  is  their  most  general  division.  Dilatory  Pleas  are 
again  subdivided  into  the  following:  — 

(1)  Pleas  to  the  Jurisdiction  of  the  Court; 

(2)  Pleas  in  Suspension  of  the  Action;  and 

(3)  Pleas  in  Abatement  of  the  Writ. 

Peremptory  Pleas  are  always  in  bar  of  the  action.^ 

Dilatory  Pleas. 

(1)  A  Plea  to  the  Jurisdiction  is  one  by  which  the  defend- 
ant excepts  to  the  jurisdiction  of  the  court,  in  which  he  is 
sued,  to  entertain  the  action  against  him.  As  we  have 
seen,  he  must  appear  and  plead  in  proper  person,  and  not 
by  attorney;  in  the  conclusion  of  his  plea  he  prays  judgment, 
if  the  court  of  our  lord  the  king  here  will  or  ought  to  have 
further  cognizance  of  the  plea  faction)  aforesaid.^ 

(2)  A  Plea  in  Suspension  of  the  Action  is  one  which  alleges 

1  Steph.  PI  82,  83.  2  jf^id.  83.  3  Ibid.  84. 


176  COMMON-LAW   PLEADING. 

some  fact  constituting  an  objection  to  the  proceeding  in  the 
suit  at  that  time  by  the  court,  and  prays  that  the  pleading  may 
be  suspended  until  that  objection  be  removed.  The  number 
of  these  pleas  is  small.  Among  them  is  that  which  alleges 
the  non-age  of  an  infant  heir  who  is  sued  on  an  obligation 
of  his  ancestor,  and  which  is  called  a  parol  demurrer  (a  suit- 
stayer);  it  concludes  with  the  infant's  averment  (through 
his  guardian)  that  he  does  not  conceive  that  during  his  minor- 
ity he  oiight  to  ansiver  the  said  A.  B.  in  his  said  plea.  And 
he  prays  that  the  parol  may  demur  until  the  full  age  of  him, 
the  said  C.  D.^ 

(3)  A  Plea  in  Abatement  of  the  Writ  is  one  which  shows 
some  ground  for  abating  or  quashing  the  original  writ,  and 
it  concludes  with  a  prayer  that  this  may  be  done. 

The  grounds  for  thus  abating  the  writ  are  any  matters  of 
fact  which  assail  its  correctness,  without  denying  the  right 
of  action- itself.  If  the  original  writ  vary  from  the  declara- 
tion, or  if  it  has  been  sued  out  pending  another  action 
already  brought  for  the  same  cause,  or  if  it  name  only  one 
person  as  defendant,  when  it  should  have  named  several,  or 
if  it  appear  to  have  been  defaced  in  a  material  part,  — all  or 
any  of  these  facts  are  grounds  for  its  abatement. 
H    Pleas  in  abatement  are  addressed  — 


(1)  To  THE  Person  of  the  Plaintiff, 

(2)  To  the  Person  of  the  Defendant, 

(3)  To  THE  Count  or  Declaration,  and 

(4)  To  the  Original  Writ. 


A  plea  in  abatement  addressed  to  the  person  (1)  of  the 
plaintiff,  or  (2)  of  the  defendant,  avers  some  fact  of  per- 
sonal disability  in  the  plaintiff  to  sue  or  in  the  defendant  to 
be  sued.  It  may  allege  that  the  plaintiff  is  an  alien  enemy 
or  an  outlaw,  or  that  the  defendant  is  a  married  woman  or 
a  bankrupt.  These  pleas  to  the  person  are  not  strictly  in 
abatement,  for  they  do  not  pray  that  the  writ  be  quashed; 
they  -pray  judgment  if  the  plaintiff  ought  to  be  answered. 
As,  however,  they  do  not  deny  the  right  of  action  itself,  but 

1  Steph.  PI.  84. 


OF   THE   PROCEEDINGS   IN   AN   ACTION.  "^^ 

urge  an  objection  of  form  and  not  of  substance,  they  are  con- 
sidered as,  and  classed  with,  pleas  in  abatement. 

(3)  A  plea  in  abatement  to  the  count  or  declaration  is 
founded  on  some  objection  applying  immediately  to  the  de- 
claration, and  only  indirectly  affecting  the  writ.  All  cases 
of  variance  between  the  declaration  and  the  original  are 
instances  of  such  objections.  But  this  sort  of  plea  was 
generally  founded  on  facts  that  could  only  be  ascertained 
by  an  examination  of  the  writ  itself,  and  hence  the  pleader 
was  compelled  to  demand  the  reading  (oyer)  of  the  original 
before  pleading  in  abatement  on  such  grounds.  To  discourage 
such  pleas,  the  courts  refused  to  grant  oyer  of  the  original  in 
these  cases,  and  hence  pleas  in  abatement  based  on  such  facts 
were  no  longer  possible.  But  there  are  pleas  in  abatement  of 
the  declaration  which  do  not  require  any  examination  of  the 
writ  itself,  e.  g.,  the  non-joinder  as  defendant  of  one  of  two 
joint-contractors,  tbe  suing  out  of  a  writ  pending  another 
action,  pleas  to  the  person  of  the  plaintiff  or  defendant,  — 
these  and  many  others  do  not  require  oyer  of  the  original,  for 
the  defendant  has  the  right  to  assume  that  the  original  and 
the  declaration  agree  with  each  other,  and  he  may  plead  such 
matters  in  abatement  without  the  production  and  reading  of 
the  original.^ 

(4)  A  plea  in  abatement  to  the  writ  is  based  on  some 
objection  to  the  writ  itself,  as,  for  example,  where  in  an  action 
on  a  joint  contract  it  omits  to  name  as  defendants  all  of  the 
joint-contractors.  These  pleas  are  subdivided  into  such  as 
are  addressed  to  the  forin  of  the  writ,  and  such  as  relate  to 
its  action.  The  former  are  again  subdivided  into  such  as 
are  founded  on  objections  apparent  on  the  writ  itself,  and 
such  as  are  founded  on  extraneous  matter?  Of  these  sub- 
divisions Mr.  Stephen  says  that  they  are  "  more  subtle  than 
useful."  3  Objections  to  the  action  of  the  writ  are  that  the 
wrong  form  of  action  has  been  brought,  as,  e.  g.,  case  instead  of 
trespass,  or  that  the  action  is  prematurely  brought.  Objec- 
tions  to   the   form   of    the   writ   apparent    on    its   face   are 

1  Steph.  PI.  86,  88.  »  Ibid.  86,  n. 

2  Ibid.  86. 

12 


178  COMMON-LAW   PLEADING. 

repugnancy,  variance  from  the  record  or  specialty  sued  on, 
and  the  like.  Objections  not  apparent  on  its  face,  and  founded 
on  extraneous  matter,  are  misnomer  of  the  plaintiff  or  defend- 
ant, non-coverture  of  persons  suing  or  sued  as  husband  and 
wife,  and  generally  the  want  of  proper  parties.^ 

!i  Pleas  in  abatement  applied  as  well  to  proceedings  by  bill  as 
to  those  by  original  writ,  only  the  necessary  verbal  changes 
being  made  in  the  wording  of  the  plea.^ 
i  The  effect  of  all  pleas  in  abatement,  if  successful,  is  to 
defeat  the  particular  action.  The  right  of  action  itself, 
however,  is  not  destroyed,  and  the  plaintiff,  on  obtaining  a 
better  form  of  writ,  may  maintain  a  new  action  if  the  objec- 
tion were  founded  on  matter  of  abatement ;  or,  if  the  objection 
were  only  to  the  disability  of  the  person,  and  in  mere  sus- 
pension of  the  action,  he  may  bring  a  new  action  when  that 
disability  is  removed.^ 

^  By  Statute  4  Ann.  c.  16,  s.  11,  all  dilatory  pleas  must  be 
verified  by  affidavit,  or,  at  least,  some  probable  matter  must 
be  shown  to  the  court  to  induce  it  to  believe  that  the  fact  of 
the  plea  is  true. 

Peremptory  Pleas. 

A  Peremptory  Plea,  or  a  Plea  in  Bar  of  the  Action,  may 
be  defined  as  one  which  shows  some  ground  for  barring  or 
defeating  the  action,  and  its  prayer  is  to  that  effect. 

A  plea  in  bar  is,  therefore,  distinguished  from  all  pleas  of 
the  dilatory  class  in  that  it  denies  the  right  of  action  alto- 
gether, instead  of  seeking  to  divert  the  proceedings  to  another 
jurisdiction,  to  suspend  them,  or  to  abate  the  particular  writ. 
It  aims  to  be  a  substantial  and  conclusive  answer  to  the  action. 
Obviously,  then,  it  must  deny  all,  or  some  essential  part,  of  the 
averments  of  fact  in  the  declaration  ;  or,  admitting  these  alle- 
gations to  be  true,  it  must  allege  new  facts  which  either 
qualify  or  destroy  the  legal  effect  of  the  former.  In  tlie  first 
case,  the  defendant  is  said,  in  the  language  of  pleading,  to 
traverse  (deny)  the  matter  of  the  declaration ;  in  the  latter, 
to  confess  and  avoid  it. 

1  Chit.  PI.  391,  392.  »  Ihid.  87. 

2  Steph.  PI.  89. 


OF  THE   PROCEEDINGS  IN   AN   ACTION.  VL^ 

I  Pleas  in  bar  are  consequently  divided  into  pleas  hy  way  of 
^averse^  and  pleas  by  way  of  confession  and  avoidance} 

The  Issue. 

If  we  suppose  the  defendant  to  plead  in  bar  to  the  declara- 
tion by  way  of  traverse^  it  is  evident  that  a  question  is  at  once 
raised  between  the  parties  ;  this  question  is  one  oifact,  viz., 
whether  the  averments  in  the  declaration  which  the  defendant 
denies  are  true.  Here  is  a  specific  matter,  affirmed  on  one 
side  and  denied  on  the  other.  According  to  the  ancient 
practice  the  defendant,  who  is  the  party  traversing,  is  gen- 
erally obliged  to  offer  to  refer  this  disputed  matter  to  some 
mode  of  trial,  and  he  does  this  by  closing  his  traverse  with 
an  appropriate  formula,  proposing  either  a  trial  by  the  country, 
i.  e.,  by  a  jury,  or  some  other  proper  method  of  decision.  We 
shall  explain  this  more  fully  when  we  speak  of  the  modes  of 
trial.  If  this  offer  of  the  defendant's  be  accepted  by  the 
plaintiff,  the  parties  are  then,  conformably  to  the  language  of 
the  ancient  pleading,  said  to  be  At  Issue,  and  the  question 
itself  is  called  the  Issue.  Hence,  a  party  who  thus  traverses, 
annexing  such  formula,  is  said  to  tender  issue,  and  the  issue 
so  tendered  is  called  an  issue  in  fact.^ 

If,  however,  the  defendant,  instead  of  traversing  the  decla- 
ration, demurs,  it  is  obvious  that  in  this  case  also  a  ques- 
tion is  raised  between  the  parties,  only  here  it  is  a  question 
of  law,  and  involves  the  legal  sufficiency  of  the  facts,  alleged 
in  the  declaration,  to  maintain  the  action.  Here,  again,  the 
defendant  is  the  denying  party,  and  he  accordingly  uses  a 
formula  referring  the  question  of  law  involved  to  the  judg- 
ment of  the  court,  which  is  the  only  proper  mode  of  trial  of 
such  question.  As  upon  a  traverse  he  tenders  an  issue  in 
fact,  so  upon  a  demurrer  he  tenders  an  issue  in  law.  A  party 
may  sometimes,  as  will  be  hereafter  seen,  traverse  or  deny 
without  offering  any  mode  of  trial ;  but,  upon  a  demurrer,  he 
always  necessarily  tenders  an  issue  in  law,  for  the  only  known 
form  of  a  demurrer  contains  an  appeal  to  the  judgment  of  the 
court.     This  tender  of  an  issue  in  law  is  necessarily  accepted 

1  Steph.  PL  89.  2  Jijid.  91. 


180  COMMON-LAW   PLEADING. 

by  the  plaintiff,  for  he  can  not  object  either  to  the  question 
itself  (since  he  prepared  his  own  declaration,  and  must  main- 
tain its  sufficiency  or  abandon  it),  or  to  the  proposed  mode  of 
decision,  for  only  the  court  can  decide  issues  in  law.     He  is 

L therefore  obliged  to  accept  or  join  in  the  issue  in  law,  and  this 
he  does  by  a  formula  called  a  joinder  in,  demurrer} 

But,  when  an  issue  in  fact  is  tendered,  the  plaintiff  is  not 
obliged  to  accept  it,  for  manifest  reasons.  The  traverse,  as  we 
have  seen,  may  only  involve  a  part  of  the  declaration,  and  the 
defendant  may,  in  the  case  supposed,  have  so  framed  his  trav- 
erse as  to  involve  only  an  immaterial  part  of  the  declaration,  or 
a  part  insufficient  to  decide  the  action.  Again,  the  plaintiff  may 
consider  the  traverse  defective  in  point  of  form,  and  he  may 
object  to  its  sufficiency  in  law  on  that  ground.  Or,  the  mode 
of  trial  proposed  may  be  legally  inapplicable  to  the  particular 
kind  of  issue.  For  any  of  these  grounds  he  may  demur  to 
the  traverse  as  insufficient  in  law.  This,  however,  would 
only  postpone  the  acceptance  of  issue  one  step;  for,  by  the 
demurrer,  he  himself  tenders  an  issue  of  law  which  must  be 
accepted  at  once. 

If  the  tender  of  issue  in  fact  be  not  demurred  to,  it  must  be 
accepted  along  with  the  mode  of  trial  which  it  proposes,  and 
this  acceptance  is  expressed  by  a  formula  called  Si  joinder  in 
issue,  or  a  similiter  (likewise). 

The  issue  in  law  or  fact  being  thus  tendered  and  accepted 
by  the  other  side,  the  parties  are  at  issue,  and  the  pleading  is 
at  an  end. 

But  this  end  may  not  come  so  soon  as  we  have  hitherto 
supposed.  Instead  of  demurring,  or  pleading  in  bar  by  way  of 
traverse  to  the  declaration,  the  defendant  may  plead  some  one 
of  the  dilator?/  pleas,  which  we  have  described,  or  a  jylea  in  bar 
by  way  of  confession  and  avoidance.  In  either  case  the  plain- 
tiff has  the  option  of  demurring  to  the  plea,  as  insufficient  in 
law  to  answer  the  declaration  by  reason  of  a  defect  in  form  or 
substance,  or  of  pleading  to  it  by  way  of  traverse,  or  by  way  of 
confession  and  avoidance  of  its  allegations.  Such  plending  on 
the  part  of  the  plaintiff  is  called  the  replication.     If  this  rep- 

1  Steph.  PL  92. 


OF  THE   PROCEEDINGS   IN   AN   ACTION. 

lication  be  by  way  of  traverse,  it  should  generally  tender  issue. 
So,  if  the  plaintiff  demur,  an  issue  in  law  is  tendered,  and  in 
either  case  a  joinder  in  issue  results.  But,  if  the  replication 
be  in  confession  and  avoidance,  the  defendant  has  in  his 
turn  the  opportunity  to  demur  to,  traverse,  or  confess  and 
avoid  its  allegations.  If  he  so  plead,  his  pleading  is  called 
the  rejoinder. 

In  the  same  manner,  and  subject  to  the  same  law  of  proceed- 
ing, viz.,  that  of  demurring,  traversing,  or  pleading  in  confession 
and  avoidance,  is  conducted  all  the  subsequent  altercation  to 
which  the  nature  of  the  case  may  lead.  These  alternate  alle- 
gations of  fact,  ov pleadings,  are  in  order  and  name  as  follows  :  \ 
Declaration,  Plea,  Replication,  Rejoinder,  Sur-Rejoinder,  / 
Rebutter,  and  Sur-Rebutter,  after  which  last  the  pleadings 
seldom  extend,  and  have  no  distinctive  name.^ 

However  the  altercation  be  prolonged,  it  is  obvious  that  this 
process  must  sooner  or  later  end  in  a  demurrer  or  a  traverse. 
The  parties  can  not  go  on  indejifiitelg  alleging  relevant  new 
matter  by  way  of  confession  and  avoidance.  So  they  arrive 
at  issue  after  a  long  series  of  pleadings,  precisely  in  the  same 
manner  as  when  the  process  ends  with  the  plea. 

After  thus  discussing  the  respective  functions  of  the  de- 
murrer and  of  the  pleading,  the  student  will  hardly  need  to 
have  his  attention  called  to  the  fact  that  a  demurrer  is  never 
based  upon  matter  extraneous  to  the  pleading  which  it  opposes,] 
but  must  be  supported  by  the  face  of  that  pleading  ;  a  plead- 
ing, on  the  other  hand,  is  always  founded  on  extraneous  matter. 
A  demurrer  admits  facts,  alleged  in  proper  form ;  a  pleading 
brings  into  the  case  new  facts,  e.  g.,  if  the  declaration  in  a 
given  case  fail  to  name  the  plaintiff,  this  defect  is  apparent  on 
its  face,  and  should  be  taken  advantage  of  by  demurrer ;  but 
if  the  defendant  be  improperly  named  in  the  declaration  as 
"William  instead  of  John,  the  fact  that  his  name  is  John  is  an 
extraneous  fact,  not  disclosed  by  the  declaration  itself,  and 
must  be  brought  into  the  case,  therefore,  by  way  of  a  plea  in 
abatement.^ 

1  Steph.  PI.  93,  94.  2  Hid.  96,  97. 


182  common-law  pleading. 

Occasional  Pleas  and  Incidents. 

The  pleading  has  been  hitherto  supposed  to  take  its  direct 
and  simple  course.  There  are,  however,  8ome  pleas  and  inci- 
dents of  occasional  occurrence  by  which  its  progress  is  some- 
times interrupted,  and  such  pleas  are  called 

Pleas  Puis  Darreign  Continuance, 

It  will  be  remembered  that  under  the  ancient  law  there 
were  continuances,  i.  e.,  adjournments  of  the  proceedings,  for 
certain  purposes,  from  one  day  or  one  term  to  another ;  and 
that,  in  such  cases,  there  was  an  entry  made  on  the  recoi'd, 
expressing  the  ground  of  the  adjournment,  and  appointing  the 
parties  to  re-appear  at  the  given  day.  In  the  intervals,  between 
such  continuances  and  the  day  appointed,  the  parties  were  of 
course  out  of  court,  and  consequently  not  in  a  situation  to 
plead.  But  it  sometimes  happened  that,  after  a  plea  had  been 
pleaded,  and  while  the  parties  were  out  of  court  in  consequence 
of  such  a  continuance,  a  new  matter  of  defence  arose  which 
did  not  exist,  and  which  the  defendant  had  consequently  no 
opportunity  to  plead,  before  the  last  continuance.  Tiiis  new 
defence  he  was  therefore  entitled,  at  the  day  given  for  his  re- 
appearance, to  plead  as  a  matter  that  had  happened  after  the 
last  continuance  (louis  darreign  continuance  — post  ultimam  con- 
tinuationemj .  In  the  same  cases  that  occasioned  a  continuance 
in  the  ancient  law,  but  in  no  other,  a  continuance  still  takes 
place.  At  the  time,  indeed,  when  the  pleadings  are  filed  and 
delivered,  no  record  actually  exists,  and  there  is  therefore  no 
entry  at  that  time  made  on  record  of  the  award  of  a  contin- 
uance ;  but  the  parties  are,  from  the  day  when,  by  the  ancient 
practice,  a  continuance  would  have  been  entered,  supposed  to 
be  out  of  court,  and  tlie  pleading  is  suspended  till  tlie  day 
arrives  to  which,  by  the  ancient  practice,  the  continuance 
would  extend.  At  that  day  the  defendant  is  entitled,  if  any 
new  matter  of  defence  has  arisen  in  the  interval,  to  plead  it 
according  to  the  ancient  plan,  puis  darreign  continuance. 

A  plea  puis  darreign  continuance  is  always  pleaded  by  way 
of  substitution  for  the  former  plea,  on  which  no  proceeding 


OF  THE   PROCEEDINGS  IN   AN   ACTION.  183 

is  afterwards  had.  It  may  be  either  in  bar  or  abatement,  and 
is  followed  like  other  pleas,  by  a  replication  and  other  plead- 
ings, till  issue  is  attained  upon  it.^ 

Demand  of  View. 

One  of  the  incidents  of  occasional  occurrence,  by  which  the 
progress  of  the  pleading  was  sometimes  varied,  was  the  demand 
of  view. 

In  most  real  and  mixed  actions,  in  order  to  ascertain  the 
identity  of  the  land  claimed  with  that  in  the  tenant's  posses-! 
sion,  the  tenant  is  allowed,  after  the  demandant  has  counted! 
(i.e.,  filed  his  count  or  declaration),  to  demand  a  view  of  theJ 
land  in  question  ;  or,  if  the  subject  of  claim  be  a  rent,  a  right ' 
of  advowson,  a  right  of  common,  or  the  like,  a  view  of  the  land  \ 
out  of  which  it  issues.  This,  however,  is  confined  to  real  or  ^ 
mixed  actions.     For  in  actions  personal,  the  view  does  not  lie. 

The  view  being  granted,  the  course  of  proceeding  is  to-  issue 
a  writ,  commanding  the  sheriif  to  cause  the  tenant  to  have 
view  of  the  land.  It  being  the  interest  of  the  demandant  to 
expedite  the  proceedings,  the  duty  of  suing  out  the  writ  lies 
upon  him,  and  not  upon  the  tenant ;  and  when,  in  obedience 
to  its  exigency,  the  sheriff  causes  view  to  be  made,  the  de- 
mandant is  to  show  to  the  tenant,  in  all  ways  possible,  the 
thing  in  demand  with  its  metes  and  bounds. 

On  the  return  of  the  writ  into  the  court,  the  demandant 
must  count  de  novo,  that  is,  declare  again,  and  the  pleading 
proceeds  to  issue.^ 

Under    modern    practice,  and,  generally,  in  pursuance   of  / 
statutory  authority,  what  is  called  a  view  is  now,  in  the  dis-  / 
cretion  of  the  court,  granted  to  the  jury  in  civil  and  criminal  I 
cases,  in    order   that,   by    an  examination    of   the    premises  I 
involved  in   the    evidence,   they  may  be    the    better   able  to  1 
apply  that  evidence.     But  this    practice    has    no  connection/ 
with  this    incident  of   pleading    which  we    are    considering,' 
and  pertains  properly  to  the  law  of  evidence.^ 

1  Steph.  PI.  98.  3  Mill.  Com.  IV.  607. 

2  Ibid.  99.      Booth  on  Real  Actions, 
37. 


184  common-law  pleading. 

Voucher  to  Warranty. 

A  warranty  is  a  covenant  real,  annexed  to  lands  and  tene- 
ments, whereby  a  man  is  bound  to  defend  such  lands  and 
tenements  for  another  person,  and,  in  case  of  eviction  by 
title  paramount,  to  give  him  lands  of  equal  value.^  Voucher 
to  warranty  fvocatio  ad  warrantizandumj  is  the  calling  of  such 
warrantor  into  court  by  the  party  warranted  (when  tenant  in 
a  real  action,  brought  for  recovery  of  such  lands)  to  defend 
the  suit  for  him ;  and  the  time  of  such  voucher  is  after  the 
demandant  has  counted.  It  lies  in  most  real  and  mixed 
actions,  but  not  in  personal. 

Where  the  voucher  has  been  made  and  allowed  by  the  court, 
the  vouchee  either  voluntarily  appears,  or  there  issues  a  judi- 
cial writ,  called  a  summons  ad  warrantizandum,  commanding 
the  sheriff  to  summon  him. 

When  he,  either  voluntarily  or  in  obedience  to  this  writ, 
appears,  and  offers  to  warrant  the  land  to  the  tenant,  it 
is  called  entering  into  the  warranty ;  after  which  he  is  con- 
sidered as  tenant  in  the  action,  in  the  place  of  the  original 
tenant.  The  demandant  then  counts  against  him  de  7iovo, 
the  vouchee  pleads  to  the  new  count,  and  the  cause  proceeds 
to  issue.2 

Voucher  to  warranty  does  not  exist  in  modern  practice,  as 
real  actions  have  been  abolished  ;  but  the  rule  seems  to  be 
established  that  when  a  person  is  responsible  over  to  another, 
either  by  operation  of  law  or  by  express  contract,  and  notice 
has  been  given  him  of  the  pendency  of  the  suit,  and  he  has 
been  requested  to  take  upon  himself  the  defence  of  it,  he  is 
no  longer  regarded  as  a  stranger  to  the  judgment  that  may  be 
recovered,  because  he  has  the  right  to  appear  and  defend  the 
action  equally  as  if  he  were  a  party  to  the  record.  When 
notice  is  thus  given,  the  judgment,  if  obtained  without  fraud 
/  or  collusion,  will  be  conclusive  against  him  whether  he  has 
appeared  or  not.' 

1  Co.  Litt.  365.  179,    187;     Washington     Gas    Co.    ?-. 

2  Steph.  PI.  100.  District   of  Columbia,   161   U.  S.   327, 

3  Littleton  v.  Kichardson,  34  N.  H     328,  330. 


OF  THE   PROCEEDINGS   IN   AN   ACTION. 


PrOFERT    AND    OyER.I 

Where  either  party  alleges  any  deed,  he  is  generally  obliged, 
by  a  rule  of  pleading  that  will  afterwards  be  considered  in  its 
proper  place,  to  make  profcrt  (proffer)  of  such  deed,  that  is,  to 
produce  it  in  court  simultaneously  with  the  pleading  in  which 
it  is  alleged.  This,  in  the  days  of  oral  pleading,  was  of  course 
an  actual  production  in  court.  Since  then,  it  consists  of  a 
formal  allegation  that  he  shows  the  deed  in  court,  it  being  in 
fact  retained  in  his  own  custody. 

Where  a  profert  is  thus  made  by  one  of  the  parties,  the 
other,  before  he  pleads  in  answer,  is  entitled  to  demand  oyer, 
that  is,  to  hear  the  deed  read.  For  it  is  to  be  observed  that 
the  forms  of  pleading  do  not  in  general  require  that  the  whole 
of  any  instrument  which  there  is  occasion  to  allege  should  be 
set  forth.  So  much  only  is  stated  as  is  material  to  the  pur- 
pose. The  other  party,  however,  may  reasonably  desire  to 
hear  the  whole,  and  this,  either  for  the  purpose  of  enabling 
him  to  ascertain  the  genuineness  of  the  alleged  deed,  or  of 
founding  on  some  part  of  its  contents,  not  set  forth  by  the  ad- 
verse pleader,  some  matter  of  answer.  He  is  therefore  allowed 
this  privilege  of  hearing  the  deed  read  verhatim. 

When  the  profert  was  actually  made  in  oiocn  court  the  de- 
mand of  oyer,  and  the  oyer  given  upon  it,  took  place  in  the 
same  manner,  and  the  course  was  that,  on  demand  by  one  of 
the  pleaders,  the  deed  was  read  aloud  by  the  pleader  on  the 
other  side.  By  the  present  practice,  the  attorney  for  the  party 
by  whom  it  is  demanded,  before  he  answers  the  pleading  in 
which  the  profert  is  made,  sends  a  note  to  the  attorney  on  the 
other  side,  containing  a  demand  of  oyer,  on  which  the  latter 
is  bound  to  carry  to  him  the  deed,  and  deliver  to  him  a  copy 
of  it,  if  required,  at  the  expense  of  the  party  demanding ;  and 
this  is  considered  as  oyer,  or  an  actual  reading  of  the  deed  in 
court. 

Oyer  is  demandable  in  all  actions,  real,  personal,  and  mixed. 

It  is  said  to  have  been  formerly  demandable  not  only  of 
deeds,  but  of  records  alleged  in  pleading,  and  (as  has  been 

1  Steph.  PI.  100-104. 


186  COMMON-LAW   PLEADING. 

before  stated)  of  the  original  ivrit  also  ;  but,  by  the  present 
practice,  it  is  not  now  granted  either  of  a  record  or  of  an 
original  writ,  and  can  be  had  only  in  the  cases  of  deeds,  pro- 
bates, and  letters  of  administration,  etc.,  of  which  profert  is 
imade  on  the  other  side ;  of  private  writings  not  under  seal, 
l^yer  has  never  been  demandable.^ 

Oyer  can  be  demanded  only  where  profert  is  made.^  In  all 
cases  where  profert  is  necessary,  and  where  it  is  also,  in  fact, 
made,  the  opposite  party  has  a  right,  if  he  pleases,  to  demand 
oyer ;  but  if  it  be  unnecessarily  made,  this  does  not  entitle  to 
oyer ;  and  so,  if  profert  be  omitted  when  it  ought  to  have  been 
jnade,  the  adversary  cannot  have  oyer,  but  must  demur. 

When  a  deed  is  pleaded  with  profert,  it  is  supposed  to 
remain  in  court  during  all  the  term  in  which  it  is  pleaded, 
but  no  longer,  unless  the  opposite  party,  during  that  term, 
plead  in  denial  of  the  deed,  in  which  case  it  is  supposed 
to  remain  in  court  till  the  action  is  determined.  Hence,  it 
is  a  rule,  that  oyer  can  not  be  demanded  in  a  subsequent  term 
to  that  in  which  profert  is  made. 

A  party  having  a  right  to  demand  oyer  is  yet  not  obliged,  in 
all  cases,  to  exercise  that  right ;  nor  is  he  obliged,  in  all  cases, 
after  demanding  it,  to  notice  it  in  the  pleading  that  he  after- 
,iwards  files  or  delivers.*  Sometimes,  however,  he  is  obliged  to 
■do  both,  viz.,  where  he  has  occasion  to  found  his  answer  upon 
any  matter  contained  in  the  deed  of  which  profert  is  made,  and 
not  set  forth  by  his  adversary.   In  these  cases  the  only  admis- 

1  But  where  an  action  is  founded  on         ^  Therefore,  in  an  action  on  a  bond 

a  written   instrument   not   under  seal,  conditioned    for    performance    of    the 

though  the  defendant  cannot  pray  oyer,  covenant  in  another  deed,  the  defendant 

yet  the  court  will  in  some  cases  make  cannot   crave   oyer  of   such   deed,  but 

an  order  for  delivery  of  a  copy  of  it  to  must   himself   plead  it  with  a  profert 

the  defendant  or  his  attorney,  and  that  (Chit.  PI.  370). 

all    proceedings   in   the   meantime    be         ^  I  Tidd,  6.38,  8th   ed.,  where  it  is 

stayed  (1  Tidd,  639,  8th  ed. ;  1  Saund.  said  that  if  the  defendant  omits  to  set 

9  d,  n.  g.).      It  seems  that  oyer  is  not  forth  the  oyer  in  his  plea,  the  plaintiff 

demandable   of    an   act  of   Parliament  in  Common  Pleas  may  insert  it  for  him 

(1   Tidd,    637);    nor  of    letters   patent  at  the  head  of  his  plea  in  making  up 

(1   Arch.  169);    nor  of  a  recognizance  the   issue;    but   in   King's   Bench  can 

(Ibid.).     But  it  is  demandable  of  a  deed  only  avail  himself  of  the  deed  by  pray- 

enrolled,  or  of    the  exemplification  of  ing  that  it  be  enrolled  at  the  head  of 

the  enrolment,  according  to  the  terms  his   own    replication.     And    see   Com. 

of  the  profert  (IbLd.J.  Dig.  Pleader,  P.  L 


OF   THE   PROCEEDINGS   IN   AN   ACTION.  187 

sible  method  of  making  such  matter  appear  to  the  court  is  to 
demand  oyer,  and  from  the  copy  given  to  set  forth  the  whole 
deed  verbatim  in  his  pleading.^ 

When  oyer  is  demanded  and  the  deed  thus  set  forth,  the 
effect  is  as  if  it  had  been  set  forth  in  the  first  instance  by  the 
opposite  party ;  and  the  tenor  of  the  deed,  as  it  appears  upon 
oyer,  is  consequently  considered  as  forming  a  part  of  the  pre- 
ceding pleading.  Therefore,  if  the  deed,  when  so  set  forth  by 
the  plea,  be  found  to  contain  in  itself  matter  of  objection  or 
answer  to  the  plaintiff's  case,  as  stated  in  the  declaration,  the 
defendant's  course  is  to  demur,  as  for  matter  apparent  on  the 
face  of  the  declaration  ;  and  it  would  be  improper  to  make 
the  objection  the  subject  of  plea. 

Imparlances.2 

By  the  ancient  practice,  if  a  party  found  himself  unprepared 
to  answer  the  last  pleading  of  his  adversary  immediately,  his 
course  was  to  pray  the  court  to  allow  him  a  further  day  for 
that  purpose ;  which  was  accordingly  granted  by  the  court  i 
to  any  day  that,  in  their  discretion,  they  might  award,  either 
in  the  same  or  the  next  succeeding  term.  The  party  was,  in 
this  case,  said  to  pray,  and  the  court  to  grant,  an  imparlance 
finterlocutio,  or  interloquelaj ,  a  term  derived  from  the  suppo- 
sition that  in  this  interval  the  parties  might  talk  together  and 
amicably  settle  their  controversy. 

An   imparlance,  when  granted,  was  one   of   the  cases  of 
continuance,  of  which  doctrine  some  general  explanation  has, 
already  been  given.     It  was  grantable  in  almost  all  actions,; 
real,  personal,  and  mixed. 

The  prayer  of  imparlance,  when  made  by  the  defendant 
prior  to  his  plea,  was  either  general  or  special.  The  first  was 
simply  a  prayer  for  leave  to  imparl.  Of  such  general  impar- 
lance it  was  a  consequence  that  the  defendant  was  afterwards 

1  Com.    Dig.   Pleader,   2    V.   4 ;    2  it,  the  plaintiff  may  either  sign  jnilg- 

Saund.  410,  n.   2 ;    1  Saund.  9  b,  n.  1  ;  ment  for  want  of   plea,  or  by  liis  repli- 

Stibbs  V.  Clough,  1  Stra.  227 ;   Ball  v.  cation    may    pray    that    the    deed    be 

Sqiiarry,    Fort.    354 ;    Colton    v.   Good-  enrolled  ( Jevons  v.  Harridge,  1   Saund. 

ridge,  2  Bl.  R.  1108.    If  he  does  not  set  9  b  ;  and  see  Com.  Dig.  p.  1). 
forth    the   whole    deed,   or   misrecites         ^  Steph.  PI.  104 ;  Chit.  PI.  375-378. 


188  COMMON-LAW   PLEADING. 

precluded  from  certain  proceedings  of  a  dilatory  tendency, 
which  might  before  have  been  competent  to  him.  Thus  he 
fcould  not,  after  a  general  imparlance,  demand  oyer,  nor  (ac- 
cording to  some  authorities)  a  view,  nor  could  he  plead  a  plea 
to  the  jurisdiction  or  in  abatement.  Accordingly,  if  he  wished 
to  preserve  his  right  to  these  advantages,  he  varied  the  form 
of  his  prayer,  and  made  it  with  a  reservation  of  such  right. 
If  his  object  was  to  preserve  the  right  of  pleading  in  abate- 
ment, he  prayed  what  is  called  a  special  imparlance  ;  but,  if  he 
desired  to  plead  to  the  jurisdiction,  he  had  to  resort  to  a 
general-special  imparlance,  which  reserved  all  advantages  and 
exceptions  whatsoever. 

This  subject  is  now  of  no  practical  importance,  and  any 
further  notice  of  it  is  unnecessary.  In  modern  practice  the 
rules  of  court  allow  a  fixed  time  to  the  parties  wherein  to 
plead,  which  allowance  may  be  enlarged  upon  cause  shown. 

Counter-Pleas  to  Oyer,  etc. 

These,  and  other  incidents  of  a  similar  kind,  may  occur  in 
pleading.  If  they  take  their  course  without  opposition,  they 
do  not,  as  we  have  seen,  long  interrupt  the  main  series  of  the 
allegations.  But,  with  respect  to  most  of  them,  the  opposite 
party  has  a  right,  if  he  pleases,  to  oppose  the  prayer  made  on 
the  other  side ;  and  for  this  purpose  he  was  entitled,  in  the 
ancient  practice  of  pleading,  to  demur  or  plead  to  it,  as  if  it 
were  a  statement  of  fact  made  in  the  direct  course  of  the 
pleading.  Thus,  if  a  party  demanded  oyer  in  a  case  where, 
upon  the  face  of  the  pleading,  his  adversary  conceived  it  to  be 
not  demandable,  the  latter  might  demur,  or  if  he  had  any 
matter  of  fact  to  allege  as  a  ground  why  the  oyer  could  not 
be  demanded,  he  might  plead  such  matter.  If  he  pleaded, 
the  allegation  was  called  a  counter-plea  to  the  oyer.  So  the 
demandant  might  have  occasion,  in  the  same  manner,  to 
counterplead  the  voucher  or  counterplead  the  view ;  all  plead- 
ings of  this  incidental  kind,  diverging  from  the  main  series 
of  the  allegations,  were  termed  counterpleas.  And  in  the 
latter  instances,  as  well  as  upon  oyer,  it  would  seem  thci-e 
might  be  demurrer  instead  of   counterplea,  if   the  objection 


OP   THE   PROCEEDINGS   IN   AN   ACTION.  189 

appeared  on  the  face  of  the  proceedings.  Again,  on  the 
counterplea,  in  all  these  cases,  there  might  be  a  replication 
and  other  subsequent  pleadings ;  and  so  the  parties  might 
come  to  issue  in  law  or  in  fact  on  this  collateral  subject, 
in  the  same  manner  as  upon  the  principal  matters  in 
controversy.  ^ 

Demurrer-Book.  —  Paper-Book. 
Supposing  the  cause  to  be  at  issue,  the  next  proceeding 
is  to  make  a  transcript  upon  paper  of  the  whole  pleadings 
that  have  been  filed  or  delivered  between  the  parties.  This 
transcript,  when  the  issue  joined  is  an  issue  in  law,  is 
called  the  demurrer-book ;  when  an  issue  in  fact,  it  is  called, 
in  the  King's  Bench,  in  some  cases,  the  issue,  in  others,  the 
paper-book,  and  in  the  Common  Pleas,  the  issue.  It  contains^ 
not  only  the  pleadings,  but  also  entries,  according  to  the 
ancient  forms  used  in  recording,  of  the  appearance  of  the 
parties,  the  continuances,  and  other  acts  supposed  to  be  done 
in  court  up  to  the  period  of  issue  joined,  even  though  such 
entries  have  not  formed  part  of  the  pleadings  as  filed  or 
delivered ;  and  it  concludes  with  an  entry  of  an  award  by 
the  court  of  the  mode  of  decision  tendered  and  accepted 
by  the  pleadings.  The  making  of  this  transcript  upon  an 
issue  in  law,  is  called  making  up  the  demurrer-book  ;  upon  an 
issue  in  fact,  making  up  the  issue  or  paper-book.  The  de- 
murrer-book, issue,  or  paper-book,  when  made  up,  is  delivered 
to  the  defendant's  attorney,  who,  if  it  contains  what  he  admits 
to  be  a  correct  transcript,  returns  it  unaltered  ;  but,  if  it  varies 
from  the  pleadings  that  were  filed  or  delivered,  he  makes  ap- 
plication to  the  court  to  have  it  set  right.^ 

Amendments. 
During  the  course  of  the  pleading,  if  either  party  per- 
ceives any  mistake  to  have  been  committed  in  the  manner 
of  his  allegation,  or  if,  after  issue  joined  on  demurrer  for 
matter  of  form,  he  should  think  the  issue  likely  to  be  de- 
cided against  him,  he  ought  to  apply,  without  delay,  for 
leave  to  amend. 

1  Steph.  PI.  107.  2  Hid.  108. 


190  COMMON-LAW   PLEADING. 

Under  the  ancient  system,  the  parties  were  allowed  to 
correct  and  adjust  their  pleadings  during  the  oral  alterca- 
tion, and  were  not  held  to  the  form  of  statement  that  they 
might  first  advance.  So,  at  the  present  day,  until  the  judg- 
ment is  signed,  in  the  manner  to  be  afterwards  mentioned, 
either  party  is  generally  at  liberty  to  amend  his  pleading  as 
1  at  common  law  ;  the  leave  to  do  which  is  granted,  as  of  course, 
I  upon  proper  and  reasonable  terms,  including  the  payment  of 
the  costs  of  the  application,  and  sometimes  the  whole  costs 
of  the  cause  up  to  that  time.  And,  even  after  the  judgment 
is  signed,  and  up  to  the  latest  period  of  the  action,  amend- 
ment is,  in  most  cases,  allowable  at  the  discretion  of  the 
court,  under  certain  statutes  passed  for  allowing  amendments 
of  the  record  ;  and  in  late  times  the  judges  have  been  much 
more  liberal  than  formerly  in  the  exercise  of  this  discretion. 
"Amendments  are,however,  always  limited  by  a  due  considera- 
tion of  the  rights  of  the  opposite  party ;  and  where,  by  the 
amendment,  he  would  be  prejudiced  or  exposed  to  unreason- 
able delay,  it  is  not  allowed.^ 

Entering  the  Issue  on  Record. 
The  pleadings  and  issue  being  adjusted  by  the  making  up, 
delivery,  and  return  of  the  demurrer-book,  issue,  or  paper- 
book,  the  next  step  is  to  enter  the  issue  on  record.  It  will 
be  remembered  that  the  pleadings  are  framed  as  if  they  were 
copied  from  a  roll  of  the  oral  pleadings.  Such  a  roll,  as  has 
been  shown,  did,  in  the  time  of  oral  pleading,  exist,  and  still 
exists  in  contemplation  of  law  ;  but  no  roll  is  now  actually 
prepared  or  record  made  till  after  issue  joined  and  made  up,  in 
the  manner  above  described.  At  that  period,  however,  a  record 
is  drawn  up  on  a  parchment  roll.  This  proceeding  is  called 
entering  the  issue ;  and  the  roll  on  which  the  entry  is  made  is 
called  the  issue  roll.  The  issue  roll  contains  an  entry  of  the 
term,  of  which  the  demurrer-book,  issue,  or  paper-book  is 
entitled ;  and  (in  the  King's  Bench)  the  warrants  of  attorney 
supposed  to  have  been  given  by  the  parties  at  the  commence- 
ment of  the  cause,  authorizing  their  attorneys  to  appear  for 

1  Steph.  PI.  110. 


OF   THE   PROCEEDINGS   IN   AN   ACTION.  191 

them  respectively ;  and  then  proceeds  with  a  transcript  of  the 
declaration  and  subsequent  pleadings,  continuances,  and  award 
of  the  mode  of  decision,  as  contained  in  the  demurrer-book, 
issue,  or  paper-book.  When  drawn  up,  it  is  filed  in  the  proper 
office  of  the  court.^ 

Modes  of  Trial. 
The  action  being  now  brought  to  that  stage  at  which  the 
issue  is  recorded,  the  next  subject  for  consideration  is  the 
manner  in  which  that  issue  is  decided. 

Decision  of  Issues  in  Law. 
The  decision  of  issues  in  law  is  vested,  as  it  always  has 
been,  exclusively  in  the  judges  of  the  court.  Therefore,  when,,' 
upon  a  demurrer,  the  issue  in  law  has  been  entered  on  record 
in  the  manner  above  described,  the  next  step  is  to  move  for  a 
concilium  ;  that  is,  to  move  to  have  a  day  appointed  on  which 
the  court  will  hear  the  counsel  of  the  parties  argue  the  de- 
murrer. And  such  day  being  appointed,  the  cause  is  then^ 
entered  for  argument  accordingly.  On  that  day,  or  as  soon ! 
afterwards  as  the  business  of  the  court  will  permit,  it  is  accord- 
ingly argued  viva  voce  in  court  by  the  respective  counsel  for 
the  parties ;  and  the  judges,  in  the  same  manner  and  place, 
pronounce  their  decision  according  to  the  majority  of  voices.^  . 

Trial  of  Issues  in  Fact. 

The  manner  of  deciding  issues  in  fact  will  require  explana-[ 
tion  at  greater  length.  The  decision  of  the  issue  in  fact  is| 
called  the  trial. 

Before  we  can  understand  the  immense  function  assigned  to 
the  trial  by  jury  to-day,  and  for  centuries  past,  in  all  English 
speaking  countries,^  we  must  go  back  to  a  time  when  such  a 
mode  of  trial  did  not  exist ;  to  a  time,  in  fact,  when  there  was 
no  such  thing  as  a  trial  at  all,  as  we  understand  that  word. 
"  We  must  once  for  all  discard  from  our  thoughts  that  familiar 

1  Steph.  PL  111.  and  its  varied  workings,  end  in  simply 

2  Thid.  114.  bringing    twelve    good     men    into    a 
8  "All  we  see  about  us,  Kings,  Lords,    box."  —  Lord  Brougham,  Present  67a;e 

and  Commons,  the  whole  machinery  of    of  (he  Law,  Feb.  7,  1829. 
the  state,  all  the  apparatus  of  the  system, 


192  COMMON-LAW   PLEADING. 

picture  of  a  trial  in  which  judges  and  jurymen  listen  to  the 
evidence  that  is  produced  on  both  sides,  weigh  testimony 
against  testimony,  and  by  degrees  make  up  their  minds  about 
the  truth.  The  language  of  the  law,  even  in  Bracton's  day, 
has  no  word  equivalent  to  our  trial.  "We  have  not  to  speak  of 
\  trial ;  we  have  to  speak  of  proof."  ^     "  That  thing  [trial],  so 

\  obvious  and  so  necessary,  as  we  are  apt  to  think  it,  was  only 
worked  out  after  centuries.^''  '^ 

Among  the  Germanic  races  popular  courts  and  popular 
justice  were  ancient  and  abiding  institutions.  These  courts 
were  originally  an  assembly  of  the  people,  in  which  all  were 
judges.  Of  law  so  administered,  Maine  says  :  "  I  will  say  no 
more  of  its  general  characteristics  than  that  it  is  intensely 
technical,  and  that  it  supplies  in  itself  sufficient  proof  that 
legal  technicality  is  a  disease,  not  of  the  old  age,  but  of 
the  infancy  of  societies."^  These  courts  assembled,  not  to 
hear  witnesses  and  to  balance  doubtful  testimony,  but  to  see 
that  certain  forms  were  strictly  observed.  The  conception 
of  a  trial  was  that  of  a  public  proceeding  between  the  parties, 
carried  on  in  a  certain  prescribed  way.  As  we  have  seen, 
it  was  once  true  that  if  a  man  stammered  in  repeating  a 
formula,  or  if,  while  holding  the  Bible  in  the  act  of  swear- 

,  ing,  every  finger   was    not    placed    in    a    certain    prescribed 

',  position,  the  suit  was  irretrievably  gone.^  Proof  meant,  not 
what  we  call  evidence,  but  the  due  observance  of  prescribed  rules 
of  procedure.     And  hence  some  room  for  choice  existed. 

There  were  many  modes  of  such  trial,  but  the  proof  was 
largely  one-sided^  i.  e.,  to  be  performed  by  one  of  the  parties 
only.  In  some  cases  the  right  to  supply  this  proof  was  a 
privilege,  in  others  a  danger  ;  hence  an  important  question  to 
be  decided  was  this :  who  has  the  right  to  go  to  the  proof  in 

'.  this  case  ?  For  determining  this  question  there  were  tradi- 
tional rules,  and  the  judgment  upon  it  (called  the  Medial 
Judgment)  came  before  the  trial,  for  the  actual  trial  was 
simply  the  following  out  of  a  certain  form  which  the  judg- 
ment itself  prescribed.^ 

1  p.  &  M.  Hist.  II.  596.  *  Thay.  Jury,  25. 

2  Thay.  Jury,  10.  6  /^j-j.  9. 

3  Early  Law  and  Custom,  170. 


OP  THE   PROCEEDINGS   IN   AN   ACTION.  193 

We  must  recall  here  what  has  already  been  said  as  to 
the  secta  or  suit.  No  complaint  made  on  the  naked  word 
of  the  plaintiff  could  put  a  defendant  to  his  proof ;  there 
must  be  something  to  support  the  complaint,  the  seeta,  or 
the  defendant's  own  writings,  or  his  tally,  etc.^ 

The  old  forms  of  trial  were,  in  cases  not  conclusively  deter- 
mined by  the  production  of  the  defendant's  own  deeds,  the  fol- 
lowing: (1)  Witnesses;  (2)  The  Party's  Oath,  with  or  without 
fellow-swearers  (compurgators);  (3)  The  Ordeal ;  (4)  Battle. 

(1)  The  Trial  by  Witnesses. 

This  appears  to  be  one  of  the  oldest,  as  it  is  also  one  of  the 
most  formal,  kinds  of  "  one-sided  proof,"  Under  Anglo-Saxon 
law  certain  transactions,  such  as  sales,  had  to  take  place 
before  official  witnesses  ;  ^  a  woman  was  endowed  at  the 
church-door,  and  a  charter  was  executed,  both  before  wit- 
nesses. In  case  of  controversy  as  to  any  of  these  facts,  thej 
formal  oath  of  these  witnesses,  who  could  not  be  cross- 
examined,  ended  the  matter.  So  too  if  the  question  werej 
of  the  non-age  of  a  party,  or,  originally,  of  the  ownership  of 
chattels,  or  of  the  death  of  the  husband  in  an  action  of  dower, 
in  all  of  these  cases  trial  by  witnesses  was  had.  But  when 
these  witnesses  came  it  was  merely  in  order  to  swear  to  a 
set  formula,  The^  made  no  promissory  oath  to  tell  the  truth 
in  answer  to  questions^  hut  an  assertory  oath.^  This  mode  of 
trial  is  obsolete,  and  requires  no  further  notice. 

(2)  The  Trial  by  Oath. 

The  most  common  and  popular  medieval  form  of  trial  by 
oath  was  where  the  party  swore  with  oath -helpers,  and  was 
called  compurcjation.  It  consisted  in  the  producing,  by  the 
party  adjudged  to  make  the  proof,  of  a  specific  number  of 
persons  to  make  oath  in  his  favor ;  the  requisite  number 
varied  with  the  rank  of  the  parties  and  of  the  compurgators,/ 
the  value  of  the  property  in  dispute,  and  the  nature  of  the! 
suit.     These    persons    were   not   witnesses,  and  they  swore, 

1  Thay.  Jury,  10,  11.  3  P.  &  M.  Hist.  II.  599. 

2  Anglo-Saxon  Law,  187,  216. 

13 


194  COMMON-LAW   PLEADING. 

not  as  to  facts,  but  as  to  the  truthfulness  of  the  party  who 
produced  them  in  his  behalf.^  In  small  matters  the  oath 
taken  was  an  informal  one,  but  in  serious  criminal  cases  it 
was  made  so  intricate  that  its  words  could  only  with  great 
difficulty  be  repeated,  and  if  a  wrong  word  was  used  the 
oath  hurst  and  the  adversary  won.  "  In  the  twelfth  century 
such  elaborate  forms  of  asseveration  had  been  devised  that, 
rather  than  attempt  them,  men  would  take  their  chance  at 
the  'hot  iron'  [the  ordeal]." ^ 

"  From  being  a  favored  mode  of  trial,  this  '  law '  or,  as  it  is 
commonly  called,  wager  of  law  [from  its  preliminary  stage  of 
giving  pledges  to  perform  it]  steadily  tended  to  become  a  thing 
exceptional ;  not  going  beyond  the  line  of  the  precedents,  and 
within  that  line  being  a  mere  privilege  along  side  of  the  grow- 
ing .  .  .  trial  by  jury.  In  the  newer  forms  of  action  it  was 
not  allowed,  and  finally  it  survived  mainly  in  detinue  and 
debt."  ^  It  did  survive  in  these  actions,  however,  and  so  late 
as  1824  it  was  demanded  as  a  right.*  In  1833  it  was  abolished 
by  act  of  Parliament. 

(3)  The  Trial  by  Ordeal. 

Primitive  man  lived  very  closely  in  contact  with  what  we 
call  the  supernatural.  In  doubt  or  in  perplexity  he  turned  to 
the  miraculous  as  the  natural  source  of  help.  Men  have  at 
all  times  and  everywhere  required  God  to  denounce  guilt  or 
to  protect  innocence  by  some  action  manifestive  of  His  power  ; 
by  making  the  flowing  water  uphold  the  guilty  body  cast  into 
it,  or  the  hot  iron  spare  the  innocent  hand  that  grasped  it. 
This  trial  by  ordeal  was  at  first  adopted  and  consecrated  by 
the  church  ;  later  (1215)  she  repudiated  it,  and  in  conse- 
quence of  that  repudiation  it  ceased  to  be  practised  generally, 
and  especially  in  England.  No  case  of  trial  by  ordeal  later 
than  1214  is  found  recorded  in  English  books,  but  in  the  year 
1679  a  defendant  is  reported  to  have  seriously  demanded  this 
form  of  trial. ^ 

1  Hist.  Pr.  301.  4  King  v.  Williams,  2  Barn.  &  Cress. 

2  P.  &  M.  Hist.  II.  599.  538 ;  s.  c.  4  Dow.  &  Ry.  3. 
8  Thay.  Jury.  28,  29.  ^  xhay.  Jury,  38. 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  195 

It  was  only  when  the  party  had  no  charters,  and  could 
furnish  neither  witnesses  nor  compurgators,  that  he  resorted  to 
the  ordeal,  except  in  cases  provided  for  by  special  legislation. 
It  was  the  typical  mode  of  trial  among  tlie  English,  as  con- 
trasted with  the  Norman  trial  by  battle.  It  was  used  frequently 
in  civil,  as  well  as  in  criminal,  cases  before  and  for  a  consid- 
erable time  after  the  Conquest.^ 

When  the  accused  was  unable,  through  age,  sex,  or  bodily 
infirmity,  to  fight  in  the  duel,  then  this  trial  by  ordeal  was 
found  to  be  a  convenient  last  resort.  The  three  varieties  of 
ordeal  in  Anglo-Saxon  law  were  those  of  fire,  water,  and  th^ 
morsel  or  corsned} 

(4)  The  Trial  by  Battle. 

The  judicial  combat  or  duel  is  a  two-sided  ordeal.  The; 
combatant  who  was  vanquished  was  looked  upon  as  a  con-i 
victed  perjurer,  and  it  was  truth  that  was  thought  to  triumph,' 
not  the  mere  superior  strength  or  skill  of  the  conqueror. 

This  mode  of  trial  was  introduced  into  England  by  William 
the  Norman,  but  was,  according  to  Blackstone,  only  used  inl 
three  cases,  one  military,  one  criminal,  and  the  third  civil  J 
The  first  was  in  the  court  of  chivalry  or  honor ;  the  secondl 
in  appeals  of  felony,  and  the  third  upon  issue  joined  in  a) 
writ  of  right.^  But  Glanvill  writes  of  it  as  of  one  of  the 
chief  modes  of  trial  in  the  king's  courts,  and  even  in  the 
courts-baron.* 

It  was  a  new  thing  in  England,  and  was  hated  by  the  natives 
as  the  Frenchman's  mode  of  trial.  In  form,  it  was  a  fight  i 
between  two  champions,  one  appearing  for  each  of  the  con- 
tending parties,  armed  with  staves,  and  he  who  was  conquered 
was  forced  to  cry  "  craven^^  and  became  an  infamous  man.  J 
Tlie  combatants  were  bound  to  fight  until  the  stars  appeared 
in  the  evening;   if  the  champion  of  the  tenant  can  defend 

1  Hist.  Pr.  322.  303,  and  to  the  fourth  book  of  Black- 

2  For    a    particular    description    of  stone's  Commentaries,  342-346*.         ...| 
the  ordeal,  the  student  is  referred   to         »  Bl.  Com.  III.  337*  338*. 
"Essays  on  Anglo-Saxon  Law,"  300-         *  Lib.  10,  c.  17;  Lib.  9,  c.  1 ;  Thaj. 

Jury,  39,  40. 


196  COMMON-LAW   PLEADING. 

himself  so  long  he  shall  prevail,  for  he  has  maintained  his 
ground  and  the  battle  is  a  drawn  one.^ 

It  was  not  until  1819,  that  this  barbarous  relic  of  a  long 
past  age  was  formally  abolished  in  England  by  act  of 
Parliament.2 

Miscellaneous  Proofs. 

There  were,  in  addition  to  the  foregoing  regular  modes  of 
trial,  a  few  miscellaneous  methods  of  proving  particular  facts. 
Certain  questions  were  decided  by  the  certificate  of  the  bishop, 
such  as  the  questions  whether  a  certain  church  had  a  properly 
constituted  parson ;  whether  two  people  were  lawfully  married ; 
whether  a  child  was  legitimate. 

,*  Again,  there  was  a  trial  by  inspection.  If  it  was  asserted 
/that  a  litigant  was  a  minor,  the  justices  would  sometimes 
(decide  the  fact  upon  an  inspection  of  him  with  their  own  eyes.^ 

The  Trial  by  the  Record. 

Before  proceeding  to  consider  the  next  mode  of  trial  and 
its  immediate  forerunner,  we  must  notice  the  proof  required 
in  cases  where  the  contents  of  a  record  are  drawn  in  question. 

The  trial  hy  the  record  applies  to  cases  where  an  issue  of 
nul  tiel  record  (no  such  record)  is  joined  in  any  action.  If  a 
record  be  asserted  on  one  side  to  exist,  and  the  opposite  party 
deny  its  existence,  under  the  form  of  traverse  that  there  is  no 
such  record  remaining  in  court  as  alleged,  and  issue  be  joined 
thereon,  this  is  called  an  issue  of  nul  tiel  record ;  and  the 
court  awards,  in  such  case,  a  trial  by  inspection  and  examina- 
tion of  the  record.  Upon  this,  the  party  affirming  its  exist- 
ence is  bound  to  produce  it  in  court,  on  a  day  given  for  the 
purpose ;  and,  if  he  fail  to  do  so,  judgment  is  given  for  his 
adversary.  The  trial  by  record  is  not  only  in  use  when  an 
issue  of  this  kind  happens  to  arise  for  decision,  but  it  is  the 
only  legitimate  mode  of  trying  such  issue,  and  the  parties 
can  not  put  themselves  upon  the  country.'^ 

1  For  a  very  detailed  and  interesting  2  Stat.  59  Geo.  III.  c.  46. 

account  of  this  mode  of  trial  the  student  ^  7.  &  M.  Hist.  II.  637. 

is  referred  to  the  third  book  of  Black-  *  Steph.  PI.  130. 
fltone's  Commentaries,  337-341*. 


OP  THE   PROCEEDINGS  IN   AN   ACTION.  197 

If  we  pause  now  to  reckon  our  available  modes  of  proof,  we 
find  that  for  the  most  important  and  numerous  class  of 
actions,  the  writs  of  right,  we  have  the  proof  by  battle ;  for 
actions  of  debt  and  detinue,  the  proof  by  wager  of  law ; 
for  actions  of  covenant,  the  papers  or  charters  of  the  de- 
fendant himself  ;  for  sales,  the  proof  by  witnesses  ;  for  records, 
the  proof  by  inspection  of  the  record ;  for  exceptional  cases, 
the  proof  by  ordeal.  But  as  yet  we  have  not  heard  even  men- 
tion of  the  proof  by  jury. 

Trial  by  Jury. 

It  is  impossible  to  do  more  than  to  present  the  barest  out- 
line of  the  introduction  and  growth  of  this  remarkable  institu- 
tion of  our  own  race.  Fortunately,  in  the  recently  published 
work  by  Professor  Thayer  upon  this  topic,  the  student  has  a 
masterly  and  thorough  exposition  of  the  subject. 

It  seems  to  be  conceded  to-day  that  Henry  11.  was  a  "  great 
and  sagacious  king ; "  ^  under  him  "  England  takes  for  a  short 
while  the  lead  among  the  States  of  Europe  in  the  production 
of  law  and  of  a  national  legal  literature."^  He  was  Duke  of 
Normandy  before  he  was  Chief  Justiciary,  and  later  King, 
of  England.  As  Duke  of  Normandy,  he  had  there  developed 
and  organized  the  Norman  Inquisition,  which  was  simply 
the  practice  of  ascertaining  facts  hy  summoning  together,  ly 
public  authority,  a  number  of  people  most  likely  and  most  com- 
petent, as  being  neighbors,  to  know  and  tell  the  truth  about  a 
given  matter,  and  call'mg  for  their  answer  under  oath.^  This 
was  the  origin  of  our  jury  of  to-day.  In  Normandy,  this 
process  of  inquisition  was  applied  both  in  legal  controversy 
and  in  political  administration.  When  the  King  of  the  Franks 
wanted  a  point  determined  which  involved  the  royal  revenue, 
he  ordered  that  inquiry  should  be  made,  not  by  witnesses 
brought  forward  by  the  party  interested,  but  "  through  those 
who  in  that  comity  are  known  to  be  of  the  best  character  and 
most  truthful;  let  inquiry  be  made  through  their  testimony, 
and  according  to  wJiat  they  shall  testify  in  the  ^premises,  let 

1  Thay.  Jury,  53.  »  Tbay.  Jury,  7. 

2  P.  &  M.  Hist.  II.  145,  146. 


198  COMMON-LAW   PLEADING. 

""^^lem  (taxes)  be  ivithheld  or  rendered^  This  reformed  pro- 
cess for  the  ascertainment  of  facts  connected  with  the  revenue 
naturally  extended  to  the  administration  of  justice.  And  yet 
only  a  strong  central  power  could  compel  parties  to  abandon 
the  old  familiar  formal  procedure  in  favor  of  this  new  and 
strange  trial.  Only  royal  authority  could  put  a  man  to  an 
oath  as  a  juryman,  and  this  fact  made  and  kept  trial  by  jury 
the  special  possession  of  the  royal  courts.^ 

This  strong  kingly  power  the  Normans  brought  with  them 
to  England.  With  them  came  also  the  inquisition.  It 
appears  to  have  been  occasionally  resorted  to  in  judicature 
prior  to  the  reign  of  Henry  II. ;  of  its  administrative  use  the 
compilation  of  Domesday  Book  in  1085-6  is  an  example. 
But  with  this  great  king  the  inquisition  began  to  assume  the 
place  which  its  inherent  potency  fitted  it  for.  He  established 
the  use  of  this  mode  of  trial  as  a  right,  and  compelled  suitors 
to  accept  it  in  lieu  of  the  old  established  proofs.  Before  his 
time,  it  had  been  granted  merely  as  a  royal  favor  to  particular 
suitors  ;  under  him  in  certain  cases  any  suitor  had  a  right  to 
the  king's  writ  ordering  it.  It  now  began  to  be  called  a 
recognition  instead  of  an  inquisition,  but  the  new  name  only 
signified  the  answer  of  the  jurors,  while  the  old  one  denoted 
the  inquiry  which  they  made.^ 

"  These  recognitions  were  so  many  new  modes  of  trial  on 
particular  questions,  established  by  a  dead  lift  of  royal 
power."  By  the  old  law  men  had  tried  their  own  cases, 
"  To  put  upon  a  man,  who  had  the  right  to  go  to  the  proof, 
instead  of  the  proof  (the  defence,  the  purgation  of  the  older 
law,  where  he  produced  the  persons  or  things  that  cleared 
him),  the  necessity  of  submitting  himself  to  the  test  of  what  a 
set  of  strangers,  witnesses  selected  by  a  public  officer,  might 
say  —  this  was  a  wonderful  thing."  ^  It  was  only  by  con- 
tinued effort  that  the  change  was  accomplished.  The  writer 
of  the  Blirror  (1291-2)  says  :  '■''It  is  an  abuse  that  the  Justices 
drive  a  lawful  man  to  2>ut  himself  on  the  country  when  he 
offers  to  defend  himself  against  the  approver  by  his  body.''"'  * 

1  Thay.  Jury,  49.  s  Ibid.  55,  56. 

2  Ibid.  55.  4  Ibid.  57. 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  199 

We  now  understand  why  a  man  in  pleading  has  to  offer  to 
put  himself  upon  the  country,  and  why  in  criminal  procedure 
the  terrible  torture  of  la  peine  forte  ct  dure  (the  strong  and 
hard  punishment)  was  used  to  open  the  mouth  of  a  prisoner 
who  stood  mute.  The  trial  by  jury  was  not  originally  a  law- 
ful trial,  and  could  not  be  forced  on  a  man  without  at  least 
the  form  of  his  assent. 

It  was  probably  at  the  council  of  Clarendon  (1166)  that 
Henry  II.  authorized  the  proceeding  known  as  the  assize  of 
novel  disseisin.^  We  have  already  seen  that  this  new  remedy 
was  devised  to  protect  the  mere  possession  of  land.  "  The 
ownership  of  land  may  be  a  matter  for  the  feudal  courts  ;  the 
king  himself  will  protect  by  royal  writ  and  inquest  of  neigh- 
bors every  seisin  of  a  free  tenement."  ^  Later,  the  same  king 
took  a  fresh  step  in  advance,  and  decreed  that  no  man  need 
answer  for  his  tenement  without  a  royal  writ.  He  decreed 
further  that  a  tenant  (defendant),  pursued  in  the  local  feudal 
court  (court-baron)  in  a  proprietary  action  for  land,  might,* 
if  he  so  desired,  have  the  action  removed  into  the  King's 
Court,  and  there  have  the  whole  question  of  right  determined 
by  a  verdict  of  neighbors.  In  this  case  the  inquest  was  called 
the  grand  assize,  and  was  made  more  solemn  in  form  than  the 
assize  of  novel  disseisin  and  other  similar  ones  subsequently 
instituted,  which  were  called,  by  way  of  distinction,  the  petti/ 
assizes.  To  constitute  the  grand  assize  the  sheriff  chose  four 
knights  "  girt  with  swords,"  who,  in  the  presence  of  the 
court,  then  chose  twelve  other  knights,  likewise  '•'•  gladiis 
cinetos;^'  this  jury  of  twelve  (but  some  authorities  say,  of 
sixteen)  constitute  the  jury  for  the  trial  of  all  writs  of  right,^ 
and  for  that  purpose  only.  ,» 

To  form  a  petty  assize  or  an  ordinary  jury,  twelve  free  and  I 
lawful  men  of  the  neighborhood  were  summoned  directly  by' 
the  shcriff.4 

We  must  now  recur  to  the  development  of  the  exception 
and  of  special  pleading  in  connection  with  the  spread  of  the 
new  method  of  trial  by  jury. 

1  P.  &  M.  Hist.  I.  124.  8  P.  &  M.  Hist.  II.  618  [cf.  Steph. 

2  Ibid.  125.  PI.  129). 

*  Ibid.  II.  G19. 


200  COMMON-LAW   PLEADING. 

In  the  case  of  these  petty  assizes,  which  were  all  of  recent 
institution,  when  the  litigants  came  into  court  they  found 
there  these  twelve  recognitors  or  jurymen,  who  formed  a  con- 
venient body  to  try  the  truth  of  any  exception  which  might 
be  pleaded  in  the  case.  In  fact,  these  jurymen  were  used  for 
that  purpose,  either  by  the  consent  of  parties  or  by  the  order 
of  the  court.  It  soon  became  common  that  the  court  would 
compel  the  plaintiff  to  submit  the  question  of  the  truth  of  an 
exception  pleaded  by  the  defendant  to  the  verdict  of  a  jury, 
under  penalty  of  having  his  cause  decided  against  him  if  he 
refused.^  This  procedure  spread  rapidly  beyond  the  domain 
of  the  petty  assizes.  In  civil  causes  generally  the  defendants 
became  desirous  of  referring  not  only  the  new  exceptions,  but 
also  the  old  absolute  denials,  to  a  form  of  trial  which  enabled 
them  to  escape  the  dangerous  and  costly  modes  of  proof  under 
the  old  law.  "  By  its  intrinsic  fairness  as  contrasted  with 
the  older  modes,  and  by  the  favor  of  the  Cfown  and  the  judges, 
it  grew  fast  to  be  regarded  as  the  one  regular  common-law 
mode  of  trial,  always  to  be  had  when  no  other  was  fixed."  ^ 
Then,  too,  all  new  writs  and  forms  of  action  in  civil  cases  re- 
quired by  their  terms  a  jury  trial,  and  as  these  were  demandable 
as  of  right  they  gave  a  great  impetus  to  the  new  mode  of  proof. 

It  will  be  interesting  to  turn  for  a  moment  to  the  instru- 
mentality of  introducing  the  inquisition  into  the  domain  of 
the  criminal  law.  On  an  appeal  of  felony  it  was  open  to  the 
party  so  appealed  of  crime  to  plead  that  the  appeal  was  not 
made  bona  fide,  but  that  it  was  brought  maliciously  to  dis- 
inherit or  otherwise  injure  him  (the  innocent  appellee).  This 
was  called  the  exceptio  de  odio  et  atia  (exception  of  spite  and 
hatred).  This  plea  often  involved  practically  a  decision  of 
the  real  guilt  or  innocence  of  the  appellee.  By  Magna  Carta 
this  writ  of  spite  and  hatred  issued  gratis  and  without  any 
denial,  and  the  sheriff  must  under  its  terms  take  an  inquest 
to  determine  the  truth  of  the  appellee's  exception.  In  this 
way  the  accused  could  ask  for  and  obtain  the  benefit  of  a 
trial  by  jury.^     But  if   he  did  not  demand    it,    if,   on    the 

1  p.  &  M.  Hist.  IL  615.  3  ii,d.  68;  P.  &  M.  Hist.  IL  585,  586- 

2  Thay.  Jury,  60. 


OF  THE   PROCEEDINGS   IN   AN   ACTION,  201 

contrary,  he  remained  mute  and  refused  to  "  put  himself  on 
the  country,"  then  came,  as  we  have  seen,  the  torture,  which 
brought  either  death  or  consent  to  the  jury-trial. 

As  showing  emphatically,  however,  the  intrusion  of  this 
method  of  trial,  and  the  persistence  of  the  old  regular  custom- 
ary modes  of  proof,  we  must  recur  to  the  fact  that  the  trial 
by  battle  was  not  dead  in  1819,  and  that  wager  of  law  lingered 
on  until  1833  ;  in  each  case,  as  has  been  said,  an  act  of  Par- 
liament was  required  to  terminate  an  outworn  but  a  long  and 
a  once  vigorous  life. 

The  student  must  pursue  elsewhere  the  study  of  that  course 
of  development  which  converted  the  ancient  witnesses  as  to 
facts,  for  such  the  inquisition  was,  into  the  modern  triers  of 
facts,  for  such  the  jury  came  to  be.  It  belongs  properly  to 
the  law  of  evidence.^ 

Venire  Facias. 

Recurring  now  to  the  general  subject  of  trial  by  jury,  it 
will  be  remembered  that,  when  the  parties  have  mutually  re- 
ferred the  issue  to  decision  by  jury,  or  (as  it  is  technically 
termed)  have  put  themselves  ujyon  the  country^  there  is  entered 
upon  the  roll  (as  in  all  other  cases)  the  award  of  the  mode  of 
decision  so  adopted.  In  the  case  of  the  trial  by  jury,  that 
award  directs  the  issuing  of  the  writ  of  venire  facias  (you  shall 
cause  to  come)  commanding  the  sheriff  of  the  county,  where 
the  facts  are  alleged  by  the  pleading  to  have  occurred,  to  sum- 
mon a  jury  to  try  the  issue  ;  and  such  writ  is  accordingly 
sued  out. 

Trials  at  Nisi  Prius. 

The  venire  facias  directs  the  jury  to  be  summoned  to  ap- 
pear in  the  superior  court.  This  is  because  the  trial  was,  in 
fact,  anciently  had  there.  But,  except  in  some  few  cases,  to 
be  presently  noticed,  the  trial  by  jury  no  longer  takes  place 
before  the  superior  court.  It  is  now  usually  conducted  in  the 
county  where  the  facts  are  alleged,  in  pleading,  to  have  oc- 
curred, and  into  which  the  venire  facias  issues,  and  before 
1  Thay.  Jury,  passim  ;  P.  &  M.  Hist,  sub  voc,  "  Jury." 


202  COMMON-LAW   PLEADING. 

certain  judges  called  the  justices  of  assize  and  nisi  prius. 
The  trial  is,  in  such  cases,  said  to  be  had  at  nisi  prius.  The 
term  is  derived  from  the  Latin  words  at  one  time  used  in  the 
writ  of  venire  facias,  by  which  the  sheriff  was  commanded  to 
summon  the  jurors  to  be,  by  a  given  day,  at  Westminster,  to 
try  the  issues,  unless  before  (nisi  prius)  tliat  time,  the  justices 
came  into  the  sheriff's  own  county,  on  their  semi-annual  cir- 
cuit, as  they  were  sure  to  do  ;  when  the  jurors,  instead  of  going 
to  Westminster,  were  summoned  to  the  assize  town  of  their 
own  county .1  When  the  trial  is  to  be  so  had,  the  course  of 
proceeding  is,  after  an  issue  to  be  tried  by  jury  has  been  en- 
tered on  record  on  the  issue  roll,  to  sue  out  the  venire  facias, 
together  with  another  writ,  for  compelling  the  attendance  of 
the  jury,  called  the  distringas  in  the  King's  Bench  ;  in  the 
Common  Pleas  the  habeas  corpora.  The  next  step  is  to  make 
up  and  pass,  at  the  proper  offices,  another  record,  on  a  parch- 
ment roll,  called  the  record  of  nisi  prius,  which  is  a  transcrij> 
tion  from  the  issue  roll,  and  contains  a  copy  of  the  pleadings 
and  issue.  This  7iisi  prius  record  is  then  delivered  to  the 
judges  of  assize  and  nisi  prius,  and  serves  for  their  guidance 
as  to  the  nature  of  the  issue  to  be  tried.  The  trials  at  7iisi 
prius  now  take  place,  in  London  and  Middlesex,  several  times 
in  the  course  of  each  term,  and  also  during  a  considerable  part 
of  each  vacation ;  in  every  other  county  they  are  held  twice  a 
year,  and  always  in  time  of  vacation.  The  justices  of  assize 
and  nisi  prius,  for  trials  in  London  and  Middlesex,  consist  of 
the  chief  justices  of  the  three  courts  respectively,  each  trying 
only  the  issues  from  his  own  court.  For  trials  in  the  other 
counties,  they  consist  of  such  persons  as  are  appointed  for  the 
purpose  by  temporary  commission  from  the  Crown,  among 
whom  are  usually,  for  each  circuit,  two  of  the  judges  of  the 
superior  courts,  the  whole  kingdom  being  divided  into  six 
circuits  for  the  purpose.^ 

Trial  at  Bar. 

Though  the  trial  by  jury  is  thus,  in  general,  had  at  nisi 
prius,  this  is  not  universally  the  case  ;  for,  in  causes  of  great 

1  Min.  lust.  IV.  189.  2  Steph.  PI.  116. 


OP   THE   PROCEEDINGS   IN   AN   ACTION.  203 

difficulty  and  consequence,  these  inquests  are  allowed  to  be  / 
taken  before  the  four  judges  in  the  superior  court  in  which/ 
the  pleading  took  place,  as  in  the  ancient  practice.     The  pro-' 
ceeding  is  then  technically  said  to  be  a  trial  at  har^  by  way 
of  distinction  from  the  trial  at  yiisi  prius. 

After  these  explanations  as  to  the  time  and  place  of  trial  by 
jury,  the  next  subject  for  consideration  is  the  course  of  the 
proceeding  itself. 

Conduct  op  Jury  Trial. 

The  whole  proceeding  of  trial  by  jury  takes  place  under  the 
superintendence  of  the  presiding  judge  or  judges,  who  usually 
decide  all  points  as  to  the  admissibility  of  evidence,  and  direct 
the  jury  on  all  such  points  of  law  arising  on  the  evidence  as  1 
is  necessary  for  their  guidance  in  appreciating  its  legal  effect,  J 
and  drawing  the  correct  conclusion  in  their  verdict. 

After  hearing  the  evidence  of  the  witnesses,  the  addresses 
of  counsel,  and  the  charge  of  the  judge,  the  jury  pronounce 
their  verdict,  which  the  law  requires  to  be  unanimously  given. 
The  verdict  is  usually  in  general  terms,  "  for  the  plaintiff,"  or 
"for  the  defendant,"  finding  at  the  same  time  (in  case  of  ver- 
dict for  the  plaintiff,  and  where  damages  are  claimed  by  the 
action)  the  amount  of  damages  to  which  they  think  him 
entitled.2 

The  principles  upon  which  the  law  requires  the  jury  to  form 
their  decision,  are  these  :  — 

1.   They  are  to  take  no  matter  into  consideration  but  the 
question  in  issue  ;  for  it  is  to  try  the  issue,  and  that  only,  that   J 
they  are  summoned. 

Example:  Where  to  an  action  of  assumpsit  the  defendant 
pleaded  that  he  did  not  promise  within  six  years,  to  which  there 
was  a  replication  that  he  did  promise  within  six  years,  on  which 
issue  was  joined,  it  was  held  not  to  be  competent  to  the  plaintiff 
to  offer  evidence  that  the  action  was  grounded  on  a  fraudulent 
receipt  of  money  by  the  defendant,  and  that  the  fraud  was  not 

1  For  an  instance  of  a  trial  at  bar  States,  see  State  of  Georgia  v.  Braila- 
in  the  Supreme  Court  of  the  United    ford,  3  Dallas,  1. 

2  Steph.  H.  117. 


^ 


204  COMMON-LAW  PLEADING. 

discovered  till  within  six  years  of  the  action,  for  the  issue  was 
merely  upon  the  promise  within  six  years. ^ 

2.  They  are  bound  to  give  their  verdict  for  the  party  who, 
upon  the  proof,  appears  to  them  to  have  succeeded  in  estab- 
lishing his  side  of  the  issue. 

3.  The  burden  of  proof,  generally,  is  upon  that  party  who, 
in  pleading,  maintained  the  affirmative  of  the  issue  ;  for  a 

I  negative  is,  usually,  incapable  of  proof.  Consequently,  un- 
less he  succeed  in  proving  that  affirmative,  the  jury  are  to 
consider  the  opposite  proposition,  or  negative  of  the  issue,  as 
established.^ 

VAEI4.NCE. 

/  The  proof  offered  may,  in  some  cases,  wholly  fail  to 
'  support  the  affirmative* of  the  issue;  but  in  others,  it  may 
fail  by  a  disagreement  in  some  particular  jjoint  or  points  only 
between  the  allegations  and  the  evidence.  Such  disagreement, 
when  upon  a  material  point,  is  called  a  variance  and  is  as 
fatal  to  the  party  on  whom  the  proof  lies  as  a  total  failure  of 
evidence,  the  jury  being  bound,  upon  variance^  to  find  the  issue 
against  him. 

Examples :  (1)  The  plaintiff  declared  in  covenant  for  not  repair- 
ing, pursuant  to  the  covenant  in  the  lease,  and  stated  the  covenant 
as  a  covenant  to  "  repair  when  and  as  need  should  require ;  "  and 
issue  was  joined  on  a  traverse  of  the  deed  alleged.  The  plaintiff, 
at  the  trial,  produced  the  deed  in  proof,  and  it  appeared  that  the 
covenant  was  thus  :  to  repair  ''  when  and  as  need  should  require, 
and  at  farthest  after  notice"  the  latter  words  having  been  omitted 
in  the  declaration.  This  was  held  to  be  a  variance,  because  the 
additional  words  were  material,  and  qualified  the  legal  effect  of 
the  contract.^ 

(2)  So  where  the  plaintiff  declared  in  assumpsit  that  for  certain 
hire  and  reward  the  defendants  undertook  to  carry  goods  from 
London  and  deliver  them  safely  at  Dover,  and  the  contract  was 
proved  to  have  been  to  carry  and  deliver  safely,  Jire  and  robbery 
excepted,  this  was  held  to  be  a  variance.* 

1  Clarke   v.   Hougham,  2  Barn.   &         '  Horsefall  v.  Testar,  7  Taunt.  385. 
Cress.  149.  *  Latham  v.  Kutley,  2  Barn.  &  Cress. 

2  Steph.  PI.  118.  20. 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  205 

On  the  other  hand,  however,  the  principle  is  not  so  rigor-  / 
ously  observed  as  to  oblige  the  party  on  whom  the  proof  lies  i 
to  make  good  his  allegation  to  the  letter.     It  is  enough  if  the  ! 
substance  of  the  issue  is  exactly  proved,^  and  a  variance  in; 
mere  form,  or  in  matter  quite  immaterial,  \y\\\  not  be  regarded. 

Example  :  In  debt  on  bond  conditioned  for  payment  of  money, 
where  the  defendant  pleaded  payment  of  principal  and  interest, 
and  the  plaintiff  replied  that  he  had  not  paid  all  the  principal 
and  interest,  and  issue  was  joined  thereon,  and  the  proof  was 
that  the  whole  interest  was  not,  in  fact,  paid,  but  that  the  de- 
fendant paid  a  sum  in  gross,  which  was  accepted  in  full  satisfac- 
tion of  the  whole  claim,  the  issue  was  considered  as  sufficiently 
proved  on  the  part  of  the  defendant.^ 

The  Verdict. 

The  verdict,  when  given,  is  afterwards  drawn  np  in  form, 
and  entered  on  the  back  of  the  record  of  nisi  prius.  This  is 
done  upon  trials  in  King's  Bench,  in  London  and  Middlesex, 
by  the  attorney  for  the  successful  party  ;  in  other  cases,  by  an 
officer  of  the  court.  Such  entry  is  called  the  postea  (after- 
ward) from  the  word  with  which,  at  a  former  period  (when 
the  proceedings  were  in  Latin),  it  commenced.  The  poste(i 
is  drawn  up  in  the  negative  or  affirmative  of  the  issue,  accordj 
ing  as  it  may  be  for  the  plaintiff  or  for  the  defendant.^  j 

Such  is  the  course  of  trial  at  nisi  prius,  in  its  direct  and 
simple  form  ;  and  the  practice  of  a  trial  at  bar  is  generally 
the  same.  Trials  by  jury,  however,  whether  at  bar  or  nisi 
prius,  are  subject  to  certain  varieties  of  proceeding,  some  of 
which  require  to  be  here  noticed. 

Incidents  of  Jury  Trial. 

If,  at  a  trial,  a  point  of  law  arises,  either  as  to  the  legal 
effect  or  the  admissibility  of  the  evidence,  the  usual  course  (as 
already  stated)  is  for  the  judge  to  decide  these  matters.     But-^ 
it  may  happen  that  one  of  the  parties  is  dissatisfied  with  the 

«  Com.  Dig.  Pleader,  S.  26.  Towne,  5  "Wall.  689,  698,  and  Moses  v. 

2  Price  V.  Brown,  Str.  690.     The  old  United  States,  166  U.  S.  579. 

rnle  as  to  variance  has  been  greatly  re-  ^  gteph.  PI.  120. 
laxed   in  this  country.     See  Nash  v. 


206  COMMON-LAW   PLEADING. 

decision,  and  may  wish  to  have  it  revised  by  a  superior  juris- 
diction. If  he  is  content  to  refer  it  to  the  superior  court  in 
which  the  issue  was  joined,  and  out  of  wliich  it  is  sent  (called, 
by  way  of  distinction  from  the  court  at  nisi  prius,  the  court 
in  banc),  his  course  is  to  move  in  that  court  for  a  neiv  trialj  — 
a  subsequent  proceeding  which  will  be  considered  hereafter 
in  its  proper  place.  But,  as  the  7iisi  prius  judge  himself  fre- 
quently belongs  to  that  court,  a  party  is  often  desirous,  under 
such  circumstances,  to  obtain  the  revision  of  some  court  of 
error,  i.  e.,  some  court  of  appellate  jurisdiction,  having  authority 
to  correct  the  decision. 

For  this  purpose,  it  becomes  necessary  to  put  the  question 
of  law  on  record  for  the  information  of  such  court  of  error ; 
and  this  is  to  be  done  pending  the  trial,  in  a  form  marked  out 
\b}^  an  old  statute  (Westminster  2,  13  Edward  I.  c.  31). 

Bill  of  Exceptions. 

/'  The  party  excepting  to  the  opinion  of   the  judge  tenders 

/him  a  bill  of  exceptions  ;  that  is,  a  statement,  in  writing,  of  the 
objection  made  by  the  party  to  his  decision,  to  which  state- 
ment, if  truly  made,  the  judge  is  bound  to  set  his  seal  in  con- 
\__firmation  of  its  accuracy.     The  cause  then  proceeds  to  verdict 
as  usual,  and  the  opposite  party,  for  whom  the  verdict  is  given, 
is  entitled,  as  in  the  common  course,  to  judgment  upon  such 
verdict  in  the  court  in  bayic,  for  that  court  takes  no  notice  of 
the  bill  of  exceptions.     But,  the  whole  record  being  afterwards 
/removed  to  the  appellate  court  by  writ  of  error  (a  proceeding 
/  to  be  hereafter  explained),  the  bill  of  exceptions  is  then  taken 
/  into  consideration  in  the  latter  court,  and  there  decided.^ 

Demurrer  to  Evidence. 

Though  the  judge  usually  gives  his  opinion  on  such  points 
of  law  as  above  supposed,  yet  it  may  happen  that,  for  various 
reasons,  he  is  not  required  by  the  parties,  or  does  not  wish  to 
do  so.  In  such  case  several  different  courses  may  be  pursued 
for  determining  the  question  of  law. 

1  Steph.  PI.  121,  and  see  especially  Money  v.  Leach,  3  Burr.  1692. 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  207 

First,  a  party  disputing  the  legal  effect  of  any  evidence  f 
offered  may  demur  to  the  evidence.     A  demurrer  to  evidence  is 
analogous  to  a  demurrer  in  pleading ;  the  party  from  whom  it  I 
comes  declaring  that  he  will  not  proceed,  because  the  evidence  ; 
offered  on  the  other  side  is  not  sufficient  to  maintain  the  issue.  [ 
Upon  joinder  in  demurrer  by  the  opposite  party,  the  jury  j 
are  generally  discharged  from  giving  any  verdict ;   and  the  ' 
demurrer,  being  entered  on  record,  is  afterwards  argued  and 
decided  in  the  court  in  banc,  and  the  judgment  there  given 
upon  it  may  ultimately  be  brought  before  a  court  of  error.^    I 

Special  Verdict. 

A  more  common,  because  more  convenient,  course  than  this 
to  determine  the  legal  effect  of  the  evidence  is,  to  obtain  from  ' 
the  jury  a  special  verdict.,  in  lieu  of  that  general  one  of  which 
the  form  has  been  already  described  ;  for  the  jury  have  an 
option,  instead  of  finding  the  negative  or  affirmative  of  the  issue,  j 
as  in  a  general  verdict,  to  find  all  the  facts  of  the  case  as  disclosed 
upon  the  evidence  before  them,  and,  after  so  setting  them  forth, 
to  conclude  to  the  following  effect  :  "  That  they  are  ignorant^ 
in  point  of  law,  on  which  side  they  ought,  upon  these  facts,  to 
find  the  issue;  that  if,  upon  the  whole  matter,  the  court  shall  be 
of  opinion  that  the  issue  is  proved  for  the  plaintiff,  they  find  for 
the  plaintiff  accordingly,  and  assess  the  damages  at  such  a  sum, 
etc.  ;  biit  if  the  court  are  of  an  opposite  opinion,  then  vice  versaP'^ 
This  form  of  finding  is  called  a  special  verdict?  However,  as' 
on  a  general  verdict  the  jury  do  not  themselves  actually  frame 
^\^postea,  so  they  have,  in  fact,  nothing  to  do  with  the  formal 
preparation  of  the  special  verdict.  Wlien  it  is  agreed  that  a 
verdict  of  that  kind  is  to  be  given,  the  jury  merely  declare 
their  opinion  as  to  any  fact  remaining  in  doubt,  and  then  the 
verdict  is  adjusted  without  their  further  interference.  It  is 
settled,  under  the  correction  of  the  judge,  by  the  counsel  and 

1  Steph.  PI.  122.     In  this  country,  the  jury  that,  admitting  the  evidence 

generally,  a  demurrer  to  evidence  was  to  he  true,  tlie  party  offering  it  is  not 

heard  hy  the  trial-justice.     But  here  it  entitled  to  recover.     Parks  y.  Ross,  11 

has  fallen  into  disuse  ;  in  lien  of  it,  the  How.  362. 

practice  prevails  of  requesting  the  trial  ^  The  form  of  this  will  he  found  in 

court  to  give  anahsolute  instruction  to  Cook  v.  Gerrard,  1  Saund.  171  a. 


208  COMMON-LAW   PLEADING. 

attorneys  on  either  side,  according  to  the  state  of  facts  as 
found  by  the  jury,  with  respect  to  all  particulars  on  which 
they  have  delivered  an  opinion,  and,  with  respect  to  other 
particulars,  according  to  the  state  of  facts  which  it  is  agreed 
^that  they  ought  to  find  upon  the  evidence  before  them.  The 
special  verdict,  when  its  form  is  thus  settled,  is,  together 
with  the  whole  proceedings  on  the  trial,  then  entered  on 
record ;  and  the  question  of  law  arising  on  the  facts  found 
is  argued  before  the  court  in  banc,  and  decided  by  that 
court  as  in  case  of  demurrer.  If  the  party  be  dissatisfied 
with  their  decision,  he  may  afterwards  resort  to  a  court  of 
error. 

It  is  to  be  observed   that  it    is    a    matter  entirely  in  the 

f  option  of  the  jury  whether  their  verdict  shall  be  general  or 

I  special.    The  party  objecting  in  point  of  law  cannot  therefore 

'   insist  on  having  a  special  verdict,  and  may  consequently  be 

\  driven  to  demur  to  the  evidence,  at  least  if  he  wishes  to  put 

j   the  objection  on   reeord,  without  which  no  writ  of  error  can 

\  be  brought  nor  the  decision  of  a  court  of  error  obtained.^ 

A  speeial  verdict  differs  from  a  demurrer  to  evidence  in  two 

marked    particulars :    (1)  the   former    ascertains    the   facts 

proved,  the  latter  recites  the  whole  evidence  adduced  ;   (2) 

in  favor  of  the  former  no  inferences  as  to  matter  of  fact  are 

allowable,  whilst  it  is  the  court's  duty  in  deciding  a  demurrer 

to  the  evidence  to  draw,  from  the  evidence  demurred  to,  all 

\  inferences  that  a  jury  must  or  might  reasonably  draw. 

I       General  Verdict  Subject  to  a  Special  Case. 

/But  if  the  object  be  merely  to  obtain  the  decision  of  the 
court  in  banc,  and  it  is  not  wished  to  put  the  legal  ques- 
tion 071  record,  with  a  view  to  a  writ  of  error,  then  the  more 
common,  because  the  cheaper  and  shorter  course,  is  neither 
to  take  a  special  verdict  nor  to  demur  to  the  evidence,  but  to 
take  a  general  verdict,  subject  (as  the  phrase  is)  to  a  special 
case  ;  that  is,  to  a  written  statement  of  all  the  facts  of  the 
'case  drawn  up  for  the  opinion  of  the  court  m  banc,  by  the 
counsel  and   attorneys    on    either   side,  under   correction  of 

1  Steph.  PI.  123. 


OP  THE  PROCEEDINGS  IN   AN   ACTION.  209 

the  judgG  at  nisi  prius,  according  to  the  principle  of  a,'' 
special  verdict,  as  above  explained.  The  party  for  whom  ) 
the  general  verdict  is  so  given  is  of  course  not  entitled  to^ 
judgment  till  the  court  in  banc  has  decided  on  the  special 
case  ;  and,  according  to  the  result  of  that  decision,  the  ver- 
dict is  ultimately  entered  either  for  him  or  his  adversary. 
A  special  case  is  not  (like  a  special  verdict)  entered  on 
record,  and  consequently  a  writ  of  error  cannot  be  brought 
on  this  decision.! 

A  special  verdict  differs  from  a  general  verdict  subject  to  a 
special  case  or  a  case  agreed,  as  it  is  sometimes  called,  in  this 
respect  also :  the  case  agreed  may  occur  at  any  time  after  the 
suit  is  instituted,  but  a  special  verdict  only  after  issue  joined. 
Like  the  special  verdict,  the  case  agreed  admits  of  no  infer- 
ences of  fact,  but  is  rigorously  construed.^ 

The  object  of  all  of  these  three  proceedings  is  by  their 
operation  to  withdraw  facts,  pregnant  with  disputed  law, 
from  the  jury,  and  to  bring  them  before  the  court  for  its 
decision  of  the  law.^ 

Proceedings  Subsequent  to  Yerdict. 

We  must  now  return  to  the  course  of  proceeding,  after  trial 
by  jury  in  what  has  been  here  called  its  direct  or  simple  form. 

The  proceedings  on  trial  by  jury,  at  7iisi  prins  or  at  bar, 
terminate  with  the  verdict. 

In  case  of  trial  at  nisi  prius,  the  return  day  of  the  last  jury 
process  (the  distringas  or  habeas  corpora,  which,  like  all  other 
judicial  writs,  is  made  returnable  into  the  court  from  which  it 
issues)  always  falls  on  a  day  in  term  subsequent  to  the  trial, 
and  forms  the  next  continuance  of  the  cause.  On  the  day 
given  by  this  continuance,  therefore  (which  is  called  the  day 
in  banc),  the  parties  are  supposed  again  to  appear  in  the  court 
in  banc,  and  are  in  a  condition  to  receive  judgment.  On  the 
other  hand,  in  case  of  trial  at  bar,  the  trial  takes  place  on  or 
after  the  return  day  of  the  last  jury  process  ;  and,  therefore, 
immediately  after  the  trial,  the  parties  are  in  court,  so  that 

1  Steph.  PI.  124.  8  Warren's  Law  Studies,  738. 

2  Min.  iDSt.  IV.  752,  753. 

U 


210  COMMON-LAW  PLEADING. 

judgment  may  be  given.  In  either  case,  however,  a  period  of 
four  days  elapses  before,  by  the  practice  of  the  court,  judgment 
can  be  actually  obtained.  And  during  this  period  certain 
proceedings  may  be  taken  by  the  unsuccessful  party  to  avoid 
the  effect  of  the  verdict.  He  may  move  the  court  to  grant 
a  new  trial,  or  to  arrest  the  judgment,  or  (if  he  be  the  plain- 
tiff) to  give  judgment  no7i  obstante  veredicto  (despite  the 
verdict),  or  to  award  a  repleader,  or  to  award  a  venire 
facias  de  novo.     Of  these  briefly  in  their  order.^ 

Motions  for  a  New  Trial. 

With  respect  to  a  new  trial.  It  may  happen  that  one  of 
the  parties  may  be  dissatisfied  with  the  opinion  of  the  nisi 
prius  judge,  expressed  on  the  trial,  whether  relating  to  the 
effect  or  the  admissibility  of  evidence ;  or  he  may  think 
the  evidence  against  him  insufficient  in  law,  where  no  ad- 
verse opinion  has  been  expressed  by  the  judge,  and  yet  may 
not  have  obtained  a  special  verdict,  or  demurred  to  the 
evidence,  or  tendered  a  bill  of  exceptions.  He  is  at  liberty, 
therefore,  after  the  trial,  and  during  the  period  above  men- 
tioned, to  move  the  court  hi  banc  to  grant  a  new  trial,  on 
the  ground  of  the  judge's  having  misdirected  the  jury,  or 
having  admitted  or  refused  evidence  contrary  to  law,  or 
(where  there  was  no  adverse  direction  of  the  judge)  on  the 
ground  that  the  jury  gave  their  verdict  contrary  to  the  evi- 
dence, or  on  evidence  insufficient  in  law.  And  resort  may 
-be  had  to  the  same  remedy  in  other  cases,  where  justice 
appears  not  to  have  been  done  on  the  first  trial,  as  where 
the  verdict,  though  not  wholly  contrary  to  evidence,  or  on 
insufficient  evidence  in  point  of  law,  is  manifestly  wrong  in 
point  of  discretion,  as  contrary  to  the  weight  of  the  evidence 
and  on  that  ground  disapproved  by  the  nisi  prius  judge.''     So, 

1  Steph.  PI.  124.  who  tried  the  cause.    And  "the  court, 

2  But  not  unless  the  finding  is  mani-  in  granting  new  trials,  does  not  inter- 
festl}'  wrong ;  for  where  there  is  a  con-  fere,  unless  to  remedy  some  manifest 
trariety  of  evidence,  which  brought  the  abuse  or  to  correct  some  manifest  error 
question  fairly  within  the  discretion  of  in  law  or  fact."  Carstairs  v.  Stein,  4 
the  jury,  the  court  will  not  disturb  the  M.  &  S.  192  ;    and  see  Swinnerton  v. 

-verdict,  though  disapproved  by  the  judge    Marquis  of  Stafford,  3  Taunt.  91,  232. 


OP   THE   PROCEEDINGS  IN   AN   ACTION.  211 

too,  a  new  trial  may  be  moved  for,  where  a  new  and  material 
fact  has  come  to  light  since  the  trial,  which  the  party  did  not 
know,  and  had  not  the  means  of  proving  before  the  jury,  or 
where  the  damages  given  by  the  verdict  are  excessive,  or  where 
the  jury  have  misconducted  themselves,  as  by  casting  lots  to 
determine  their  verdict,  etc.     In  these  and  the  like  instances 
the  court  will,  on  motion,  and  in  the  exercise  of  their  discre- 
tion, under  all  the  circumstances  of  the  case,  grant  a  new 
trial,  that  opportunity  may  be  given  for  a  more  satisfactory 
decision  of  the  issue,    A  new  jury  process  consequently  issues,  ^ 
and  the  cause  comes  on  to  be  tried  de  novo.     But  except  onl 
such  grounds  as  these,  tending  manifestly  to  show  that  the 
discretion  of  the  jury  has  not  been  legally  or  properly  exer-, 
cised,  a  new  trial  can  never  be  obtained  ;  for  it  is  a  great  f 
principle  of  law,  that  the  decision  of  a  jury,  upon  an  issue  in' 
fact,  is  in  general  irreversible  and  conclusive.^ 

Motions  in  Aerest  op  Judgment. 

Again,  the  unsuccessful  party  may  move  in  arrest  of  judg-  ' 
ment ;  that  is,  that  the  judgment  for  the  plaintiff  be  arrested 
or  withheld,  on  the  ground  that  there  is  some  error  appearing  | 
on  the  face  of  the  record,  which  vitiates  the  proceedings.     In  ! 
consequence  of  such  error,  on  whatever  part  of  the  record  it 
may  arise,  from  the  commencement  of  the  suit  to  this  period, 
the  court  are  bound  to  arrest  the  judgment.     It  is,  however, 
only  with  respect  to  objections  apparent  on  the  record  that 
such  motion  can  be  made.     Nor  can  it  be  made,  generally 
speaking,  in  respect  of  formal  objections.     This  was  formerly 
otherwise,  and  judgments  were  constantly  arrested  for  errors 
of  mere  form  ;  but  this  abuse  has  been  long  remedied   by 
certain  statutes,  passed  at  different  periods,  to  correct  incon- 
veniences of  this  kind,  and  commonly  called  the  statutes  of 
amendments  and  jeofails^  by  the  effect  of  which,  judgment,] 
at  the  present  day,  can  not  generally  be  arrested  for  any 
objection  of  form.^ 

1  Steph.  PI.  126.  8  steph.  PI  126. 

2  Old  form   of   J'ai  failli  (I   have 
failedj. 


212  COMMON-LAW   PLEADING. 

Perhaps  the  student  will  best  understand  the  nature  of  a 
motion  in  arrest  of  judgment  if  he  consider  it  as  a  postponed 
deinurrer,  i.  e.,  a  demurrer  interposed  after  judgment,  instead 
of  during  the  pleadings,  and  applying  to  all  substantial  errors 
appearing  on  the  face  of  the  record  from  the  institution  of 
the  suit  down  to  the  making  of  the  motion  itself.^ 

Motion  for  Judgment  Non  Obstante  Veredicto. 

If  the  verdict  be  for  the  defendant,  the  plaintiff,  in  some 
cases,  moves  for  judgment  non  obstante  veredicto :  that  is,  that 
judgment  be  given  in  his  own  favor,  without  regard  to  the  ver- 
dict obtained  by  the  defendant.  This  motion  is  made  in 
cases  where,  after  a  pleading  by  the  defendant  in  confession 
and  avoidance,  as,  for  example,  a  plea  in  bar  and  issue  joined 
thereon  and  verdict  found  for  the  defendant,  the  plaintiff,  on 
retrospective  examination  of  the  record,  conceives  that  such 
Ylea  was  bad  in  substance,  and  might  have  been  made  the 
subject  of  demurrer  on  that  ground.  If  the  plea  was  itself 
siihstantially  had  in  law,  of  course  the  verdict,  which  merely 
shoivs  it  to  he  true  in  point  of  fact,  can  not  avail  to  entitle  the 
defendant  to  judgment ;  while,  on  the  other  hand,  the  plea,  being 
in  confession  and  avoidance,  involves  a  confession  of  the 
plaintijf^s  declaration,  and  shows  that  he  was  entitled  to  main- 
tain his  action.  In  such  case,  therefore,  the  court  will  give 
judgment  for  the  plaintiff  without  regard  to  the  verdict ;  and 
this,  for  the  reason  above  explained,  is  also  called  a  judgment 
as  upon  confession.  Sometimes  it  may  be  expedient  for  the 
plaintiff  to  move  for  judgment  non  obstante,  etc,,  even  though 
the  verdict  be  in  his  own  favor ;  for  if,  in  such  a  case  as  above 
described,  he  takes  judgment  as  upon  the  verdict,  it  seems 
that  such  judgment  would  be  erroneous,  and  that  the  only 
safe  course  is  to  take  it  as  upon  confession. ^ 

Before  the  Statute  of  Anne  (allowing  several  pleas),  the 
question  whether  there  should  be  a  repleader  or  judgment 
non  obstante  veredicto,  depended    on  whether   the   plea,   on 

^  A  motion  in  arrest  of  judfi;ment  purpose.     Bond   v.  Dustin,   112  U.   S. 

can   only  be   maintained   for  a  defect  604,  608. 
apparent    upon    the    record,    and    the         *  Steph.  PL  127. 
evidence  is  no  part  of  the  record  for  this 


OP  THE   PROCEEDINGS  IN   AN   ACTION.  213 

which  the  immaterial  issue  arises,  admits  a  cause  of  action  by 
way  of  confession  and  avoidance.  But  since  that  statute  it 
has  been  held  that,  although  the  plea  (on  which  the  imma- 
terial issue  was  found  for  the  defendant)  did  not  confess  the 
cause  of  action,  yet  if  it  was  confessed  or  proved  on  the  other 
pleas  which  were  found  for  the  plaintiff,  there  should  be  no 
repleader,  but  judgment  for  the  plaintiff.  And  even  although 
the  pleas  on  which  the  good  issues  have  been  taken  and  found 
for  the  plaintiff  were  not  pleas  in  confession  and  avoidance, 
but  traverses  of  material  allegations  in  the  declaration,  and 
although  some  of  the  material  allegations  were  neither  trav- 
ersed nor  proved,  nor  admitted  by  way  of  confession  and 
avoidance,  nevertheless,  it  has  been  held  that,  when  the  other 
material  pleas  enabled  the  court  to  give  judgment  —  without 
requiring  the  parties  to  replead  in  order  to  show  on  which 
side  the  right  was  —  there  should  be  no  repleader,  but  judg- 
ment non  obstante  veredicto.^ 

Motion  for  a  Repleader. 

The  motion  for  a  repleader  is  made  where  the  unsuccessful ' 
party,  on  examination  of  the  pleadings,  conceives  that  the 
issue  joined  was  an  immaterial  issue,  that  is,  not  taken  on  a 
point  proper  to  decide  the  action.  It  has  been  shown  that 
the  issue  joined  is  always  some  question  raised  between  the 
parties,  and  mutually  referred  by  them  to  judicial  decision  ; 
but  that  point  may  nevertheless,  on  examination,  be  found 
not  proper  to  decide  the  action.  For  either  of  the  parties 
may,  from  misapprehension  of  the  law,  or  oversight,  have 
passed  over  without  demurrer  a  statement  on  the  other 
side  insufficient  and  immaterial  in  law ;  and  an  issue  in 
fact  may  have  been  ultimately  joined  on  such  immaterial 
statement;  and  so  the  issue  will  be  immaterial,  though  the 
parties  have  made  it  the  point  in  controversy  between 
them. 

It  was  said  that  a  repleader  was  never  granted  to  the  party 
who  had  made  the  first  fault  in  the  pleading,  but  to  that  sug- 
gestion Tindal,  C.  J.,  once  answered :  "  A  repleader  is  rather 

1  Coaling  v.  Coxe,  6  Dow.  &  L.  399. 


214  COMMON-LAW   PLEADING. 

the  act  of  the  court,  where  it  sees  that  justice  can  not  be  done 
without  adopting  that  course."  ^ 

The  difference  between  a  repleader  and  a  judgment  non 
obstante  veredicto  is  best  expressed  bj  the  following  language 
of  Chief  Justice  Holt :  — 

"  Where  the  plea  of  the  defendant  confesses  the  duty  for 
which  the  plaintiff  declared,  but  doth  not  sufficiently  avoid  it, 
and  thereupon  issue  is  joined  on  an  immaterial  thing,  if  it  is 
found  for  (or  against)  the  plaintiff,  he  shall  have  judgment, 
though  the  issue  was  immaterial ;  but  where  the  defendant's 
plea  avoids  the  plaintiff's  duty,  who  replies  and  traverses  a 
matter  not  material,  and  issue  is  taken  upon  such  immaterial 
traverse,  and  it  is  found  for  (or  against)  him,  the  statute  of 
jeofails  will  not  help  in  such  case  ;  but  there  must  be  a 
repleader.2 

If  the  issue  might  in  any  aspect  of  the  case  have  been 
material,  a  repleader  will  not  be  awarded.^  According  to  the 
English  practice  the  motion  for  a  judgment  non  obstante  vere- 
dicto could  be  made  by  the  plaintiff  only,  the  defendant  avail- 
ing himself  of  the  same  ground  by  a  motion  in  arrest  of 
judgment ;  the  motion  for  a  repleader  could  be  made  by 
either  party.  Again,  it  must  be  noted  that  a  judgment  non 
obstante  veredicto  is  always  upon  the  merits^  as  shown  in  the 
pleadings,  while  a  repleader  is  upon  a  formal  defect  in 
the  pleadings.* 

Example :  If  in  an  action  of  debt  on  bond,  conditioned  for  the 
payment  of  ten  pounds  ten  shillings  at  a  certain  day,  the  defend- 
ant pleads  payment  of  ten  pounds,  according  to  the  form  of  the 
condition,  and  the  plaintiff,  instead  of  demurring,  tenders  issue 
upon  such  payment,  it  is  plain  that,  whether  this  issue  be  found 
for  the  plaintiff  or  the  defendant,  it  will  remain  equally  uncertain 
whether  the  plaintiff  is  entitled  or  not  to  maintain  his  action ; 
for  in  an  action  for  the  penalty  of  a  bond,  conditioned  to  pay  a 
certain  sum,  the  only  material  question  is,  whether  the  exact 
sum  were  paid  or  not,  and  a  payment  in  part  is  a  question  quite 
beside  the  legal  merits.® 

1  Gordon  v.  Ellis,  7  M.  &  G.  607.  «  Min.  Inst.  TV.  774,  775. 

2  Witts  V.  Poleliampton,  3  Salk.  305.         5  Kent  v.  Hall,  Hob.  113. 
^  Kempe  v.  Crews,  1  Ld.  Raym.  167. 


OF   THE   PKOCEEDINGS   IN   AN   ACTION.  215 

In  such  cases,  therefore,  the  court,  not  knowing  for  whom 
to  give  judgment,  will  award  a  repleader,  that  is,  will  order 
the  parties  to  plead  de  novo  (anew),  for  the  purpose  of  obtain- 
ing a  better  issue.^ 

Venire  Facias  de  Novo. 


A  venire  facias  de  novo,  that  is,  a  new  writ  of  venire  facias, 
will  be  awarded  when,  by  reason  of  some  irregularity  or  de-  / 
feet  in  the  proceedings  on  the  first  venire,  or  the  trial,  the' 
proper  effect  of  that  writ  has  been  frustrated,  or  the  verdict 
become  void  in  law  ;  as,  for  example,  where  the  jury  has  been 
improperly  chosen,  or  given  an  uncertain,  or  ambiguous,  or 
defective  verdict.  The  consequence  and  object  of  a  new  venire 
are,  of  course,  to  obtain  a  new  trial ;  and  accordingly  this  pro- 
ceeding is,  in  substance,  the  same  with  a  motion  for  a  new 
trial.  Where,  however,  the  unsuccessful  party  objects  to  the 
verdict,  in  respect  of  some  irregularity  or  error  in  the  prac- 
tical course  of  proceeding,  rather  than  on  the  merits,  the  form 
of  the  application  is  a  motion  for  a  venire  de  novo,  and  not  for 
a  new  trial.^ 

The  Judgment. 

It  has  now  been  shown  in  what  manner  the  issue,  whether 
in  law  or  fact,  is  decided.  It  has  been  explained,  too,  by 
what  means  the  unsuccessful  party  may,  upon  an  issue  in 
fact,  avoid  in  some  cases  by  motion  in  court  the  effect  of  the  | 
decision.  Supposing,  however,  that  such  means  are  not! 
adopted,  or  do  not  succeed,  or  that  the  issue  be  an  issue  in 
law,  the  next  step  is  the  judgment.^ 

As  the  issue  is  the  question  which  the  parties  themselves 
have,  by  their  pleading,  mutually  selected  for  decision,  they 
are  generally  considered  as  having  each  put  the  fate  of  the 
cause  upon  that  question  ;  and  as  soon,  therefore,  as  the  issue 
is  decided  in  favor  of  one  of  them,  that  party  generally  be- 
comes victor  in  the  suit ;  and  nothing  remains  but  to  award 
the  judicial   consequence   which   the   law   attaches   to  such 

^  Steph.  PI.   128;  2    Saund.  319  b,  2  Withani  v.  Lewis,  I  Wils.  48. 

n.  6.  8  Steph.  PL  132. 


216  COMMON-LAW  PLEADING. 

success :  The  award  of  this  judicial  consequence  is  called 
the  judgment,  and  is  the  province  of  the  judges  of  the 
court. 

The  nature  of  the  judgment  varies  with  that  of  the  action, 
^he  plea,  the  issue,  and  the  manner  and  result  of  the  decision. 

Judgment  for  the  Plaintiff. 

It  shall  be  first  supposed  that  the  issue  is  decided  for  the 
plaintiff. 

In  this  case,  if  it  be  an  issue  in  law,  arising  on  a  dilatory- 
plea,  the  judgment  is  only  that  the  defendant  answer  over, 
which  is  called  a  judgment  of  respondeat  ouster.     The  plead- 
ing is  accordingly  resumed,  and  the  action  proceeds.      This 
judgment,  therefore,  does  not  fall  within  the  definition  of  the 
term  just  given,  but  is  of  an  anomalous  kind.     Upon  all  other 
issues  in  law,  and,  generally,  upon  all  issues  in  fact,  the  judg- 
ment is  that  the  plaintiff  do  recover^  which  is  called  a  judgment 
V  quod  recuperet.     The  nature  of  such  judgment,  more  particu- 
f  larly  considered,  is  as  follows  :  It  is  of  two  kinds,  interlocn- 
1  tor^  and  final.     If  tlie  action  sound  in  damages  (according  to 
r"the  technical  phrase),  that  is,  be  brought  not  for  specific  re- 
'  covery  of  lands,  goods,  or  sums  of  money  (as  is  the  case  in 
real  and  mixed  actions,  or  the  personal  actions  of  debt  and 
'  detinue),  but  for  damages  only,  as  in  covenant,  trespass,  etc. ; 
,  and  if  the  issue  be  an  issue  in  law,  or  any  issue  in  fact  not 
'i  tried  by  jury,  then  the  judgment  is   only  that  the  plaintiff 
ought  to  recover  his  damages,  without  specifying  their  amount ; 
for,  as  there  has  been  no  trial  by  jury  in  the  case,  the  amount 
of  damages  is  not  yet  ascertained.     The  judgment  is  then  said 
to  be  interlocutory.    On  such  interlocutory  judgment  the  court 
does  not,  generally,  itself   undertake  the  office  of   assessing 
[  damages,  but  issues  a  writ  of  inquiry  directed  to  the  sheriff  of 
the  county  where  the  facts  are  alleged  by  the  pleading  to 
have  occurred,  commanding  him  to  inquire  into  the  amount 
of  the  damage  sustained,  "  by  the  oath  of  twelve  good  and 
lawful  men  of  his  county,"  and  to  return  such  inquisition, 
when  made,  to  the  court.     Upon  the  return  of  the  inquisition, 
the  plaintiff  is  entitled  to  another  judgment,  viz. :   that  he 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  217 

recover  the  amount  of  the  damages  so  assessed ;  and  this  is  / 
called  final  judgment.  But  if  the  issue  be  in  fact,  and  was 
tried  by  a  jury,  then  the  jury,  at  the  same  time  that  they  tried 
the  issue,  assessed  the  damages.  In  this  case,  therefore,  no 
writ  of  inquiry  is  necessary ;  and  the  judgment  is  final  in  the 
first  instance,  and  to  the  same  effect  as  just  mentioned,  viz. : 
that  the  plaintiff  do  recover  the  damages  assessed.  Again,  if 
the  action  do  not  sound  in  damages,  the  judgment  is  in  this 
case  also  generally  final  in  the  first  instance ;  and  to  this 
effect,  that  the  plaintiff  recover  seisin  of  the  land,  etc.,  or  re- 
cover the  debt,  etc.  But  there  is,  beside  this,  in  mixed  actions, 
a  judgment  for  damages  also  ;  and  this  is  either  given  at  the 
same  time  with  that  for  recovery  of  seisin,  if  the  damages 
have  been  assessed  by  a  jury,  or,  if  not  so  assessed,  a  writ  of 
inquiry  issues,  and  a  second  judgment  is  given  for  the  amount 
found  by  the  inquisition.^ 

Judgment  for  the  Defendant. 

The  issue  shall  next  be  supposed  to  be  decided  for  the 
defendant. 

In  this  case,  if  the  issue,  whether  of  fact  or  law,  arise  on 
a  dilatory  plea,  the  judgment  is,  that  the  writ  for  bill)  he 
quashed  (quod  breve  (or  billa)  cassetur)  upon  such  pleas  as 
are  in  abatement  of  the  writ  or  bill,  and  that  the  pleading 
remain  without  day,  until,  etc.,  upon  such  pleas  as  are  in  sus- 
pension only  ;  the  effect,  in  the  first  case,  of  course  being  that 
the  suit  is  defeated,  but  with  liberty  to  the  plaintiff  to  prose- 
cute a  better  writ  or  bill ;  in  the  second,  that  the  suit  is 
suspended  until  the  objection  be  removed.  If  the  issue 
arise  upon  a  declaration  or  peremptory  plea,  the  judgment 
generally  is  that  the  plaintiff  take  nothing  by  his  writ  (or 
bill),  and  that  the  defendant  go  thereof  without  day,  etc., 
which  is  called  a  judgment  of  nil  capiat  per  breve,  or,  per 
billam. 

What  has  been  said  as  to  the  different  forms  of  judgment 
relates  to  those  on  direct  issues.     Upon  an  issue  of  the  coUat- 

1  2  Saund.  44  n.  4. 


•f 


218  COMMON-LAW  PLEADING. 

eral  or  incidental  kind  (which  is  a  case  that  does  not  occur  in 
modern  practice),  the  judgment  is  sometimes  respondeat 
ouster  ;  in  other  cases,  quod  recuperet ;  but  the  law,  with  re- 
spect to  the  judgment  on  issues  of  this  kind,  does  not  seem  to 
be,  in  every  instance,  clearly  settled.^ 

Judgments  by  Default,  Confession,  etc. 

Judgment  has  hitherto  been  supposed  to  be  awarded  only 
upon  the  decision  of  an  issue.     There  are  several  cases,  how- 
ever, in  which  judgment  may  be  given  though  no  issue  have 
arisen,  and  these  cases  will  now  require  notice.     In  the  de- 
scription given  in  this  chapter  of  the  manner  of  suit,  it  will 
be  observed  that  the  action  has  been  uniformly  supposed  to 
proceed  to  issue,  and  this  has  been  done  to  prevent  digression 
and  complexity.     But  an  action  may  be  cut  off  in  its  progress 
and  come  to  premature  termination  by  the  fault  of  one  of  the 
parties  in  failing  to  pursue  his  litigation  ;  and  this  may  happen 
either  with  the  intention  of  abandoning  the  claim  or  defence, 
*or  from  failing  to  follow  them  up  within  the  periods  which 
jthe  practice  of  the  court  in  each  particular  case  prescribes. 
In  such  cases  the  opposite  party  becomes  victor  in  the  suit,  as 
well  as  where  an  issue  has  been  joined  and  is  decided  in  his 
favor,  and  is  at  once  entitled  to  judgment.     Thus,  in  a  real 
.(though  not  in  a  personal)  action,  if  the  defendant  holds  out 
against  the  process,  judgment  may  be  given  against  him  for 
default  of  appearance.     So,  in  actions  real,  mixed,  or  per- 
sonal, if  after  appearance  he  neither  pleads  nor  demurs,  or  if 
] after  plea  he  fails  to  maintain  his  pleading  till  issue  joined, 
I  by  rejoinder,  rebutter,  etc.,  judgment  will  be  given  against 
'  him  for  want  of  plea,  which  is  called  judgment  by  nil  dicit 
(he  nothing  says).     So  if,  instead  of  a  plea,  his  attorney  says 
>he  is  not  informed  of  any  answer  to  be  given  to  the  action, 
judgment  will  be  given  against  him ;  and  it  is  in  that  case 
called  a  judgment  by  nan  sum  informatus  (I  am  not  informed). 
Again,  instead  of  a  plea,  he  may  choose  to  confess  the  action  ; 
/  or,  after  pleading,  he  may  at  any  time  before  trial  both  con- 
fess  the  action  and  withdraw  his  plea  or  other  allegations  ; 

1  Steph.  PI.  135. 


OF   THE   PROCEEDINGS   IN   AN   ACTION,  219 

and  the  judgment  against  him  in  these  two  cases  is  called  a 
judgment  by  confession  or  by  confession  relicta  verificatione  ^  A^ 
(proof  being  waived).  On  the  other  hand,  judgment  may 
be  given  against  the  plaintiff,  in  any  class  of  actions,  for 
not  declaring  or  replying,  or  surrejoining,  etc.,  or  for  not 
entering  the  issue ;  and  these  are  called  judgments  of  non 
pros,  (from  non  prosequitur,  he  does  not  pursue).  So,  if  he 
chooses,  at  any  stage  of  the  action  after  appearance  and  before 
judgment,  to  say  that  he  "  will  not  further  prosecute  his  suit," 
or  that  "  he  withdraws  his  suit,"  or  (in  case  of  plea  in  abate- 
ment) prays  that  his  "  writ "  or  "  bill  may  be  quashed, 
that  he  may  sue  or  exhibit  a  better  one,"  there  is  judgment 
against  him  of  nolle  prosequi,  retraxit,  or  cassetur  breve,  or 
billa,  in  these  cases  respectively.  Again,  judgment  of  nonsuit 
may  pass  against  the  plaintiff,  which  happens  when,  on  trial 
by  jury,  the  plaintiff,  on  being  called  or  demanded,  at  the 
instance  of  the  defendant,  to  be  present  in  court  while  the 
jury  give  their  verdict,  fails  to  make  his  appearance.  In  this 
case  no  verdict  is  given,  but  judgment  of  nonsuit  passes  against 
the  plaintiff.  So  if,  after  issue  is  joined,  the  plaintiff  neglects 
to  bring  such  issue  on  to  be  tried  in  due  time,  as  limited  by 
the  course  and  practice  of  the  court  in  the  particular  case, 
judgment  will  also  be  given  against  him  for  this  default ;  and : 
it  is  called  judgment  as  in  case  of  nonsuit. 

These  judgments  by  default,  confession,  etc.,  when  given 
for  the  plaintiff,  are   generally  quod  recuperet,  and  may  be 
either  interlocutory  or  final,  according  to  a  distinction  already  \ 
explained.      For  the  defendant,  the   form   generally   is   nil 
capiat  (let  him  take  nothing). ^ 

Upon  judgment  in  most  personal  and  mixed  actions,  whether 
upon  issue,  or  by  default,  confession,  etc.,  it  will  be  observed 
that  it  forms  part  of  the  adjudication  that  the  plaintiff  or 
defendant  recover  his  costs  of  suit  or  defence,  which  costs  are 
taxed  by  an  officer  of  the  court  at  the  time  when  the  judgment 
is  given. 

There  is  generally  an  addition,  too,  when  the  judgment  is 
for  the  plaintiff,  that  the  defendant  "  be  in  mercy  "  (in  miscri- 

1  Steph.  PL  135,  136, 137. 


220  COMMON-LAW  PLEADING. 

cordiaj^  that  is,  be  amerced  or  fined  for  his  delay  of  justice  ; 
when  for  the  defendant,  that  the  plaintiff  be  in  mercy,  for  his 
false  claim.  The  practice,  however,  of  imposing  an  actual 
amercement  has  been  long  quite  obsolete. 

Judgments,  like  the  pleadings,  were  formerly  pronounced  in 
open  court,  and  are  still  always  supposed  to  be  so ;  and  they 
are  consequently  always  considered  as  taking  place  in  term 
time.  But,  by  a  relaxation  of  practice,  there  is  now,  generally, 
except  in  the  case  of  an  issue  in  law,  no  actual  delivery 
of  judgment,  either  in  court  or  elsewhere.  The  plaintiff  or 
defendant,  when  the  cause  is  in  such  a  state  that  by  the  course 
of  practice  he  is  entitled  to  judgment,  obtains  the  signature  or 
allowance  of  the  proper  officer  of  the  court,  expressing  gen- 
erally that  judgment  is  given  in  his  favor,  and  this  is  called 
signing  judgment,  and  stands  in  the  place  of  its  actual  de- 
livery by  the  judges  themselves.^  Though  supposed  to  be 
pronounced  during  term,  judgments  are  frequently  signed  in 
time  of  vacation. 

Entering  Judgment  on  Record. 

Regularly,  the  next  proceeding  is  to  enter  the  judgment  on 
record.  Where  it  has  been  signed  after  trial  or  demurrer,  it 
will  be  remembered  that  the  proceedings  up  to  the  time  of 
issue  and  the  award  of  venire,  or  the  continuance  by  curia 
advisare  vult(ih.Q  court  wishes  to  consider),  have  already  been 
recorded.  It  will  remain,  however,  to  enter  the  subsequent 
proceedings  to  the  judgment  inclusive,  which  is  called  enter- 
ing the  judgment.  This  is  done  by  drawing  them  up  with 
continuances,  etc.,  on  the  same  roll  on  which  the  issue  was 
entered,  by  way  of  continuation,  or  further  narrative,  of  the 
proceedings  there  already  recorded  ;  and  the  judgment  is 
entered  in  such  form  as  the  attorney  for  the  successful  party 
conceives  to  be  legally  appropriate  to  the  particular  case,  sup- 
posing that  it  were  actually  pronounced  by  the  court.  The 
roll,  when  complete  by  the  entry  of  final  judgment,  is  no 
longer  called  the  issue  roll,  but  has  the  name  of  the  judgment 
roll,  and  is  deposited  and  filed  of  record  in  the  treasury  of  the 

1  Steph.  PI.  137. 


OF  THE   PROCEEDINGS   IN   AN   ACTION.  221 

court.  This  whole  proceeding  of  entering  the  judgment  on 
record  is,  in  practice,  usually  neglected.  Yet  there  are 
several  cases  in  which,  by  the  practice  of  the  court,  it  becomes 
essential,  after  final  judgment,  to  do  so,  and  in  which  it  is, 
therefore,  actually  done. 

When  judgment  is  signed,  not  after  trial  or  demurrer,  but 
as  by  default,  confession,  etc.,  there  having  been  no  issue  roll 
yet  made  up,  the  whole  proceedings,  to  the  judgment  inclusive, 
are  to  be  entered  for  the  first  time  on  record.  This  is  accord- 
ingly done  by  the  attorney  upon  a  parchment  roll,  and  upon 
the  same  principles  as  to  the  form  of  entry  that  have  been 
already  stated  with  respect  to  recording  the  issues  and  judg- 
ment thereon.i 

Execution. 

The  course  of  the  action,  till  the  entry  on  record  of  the  final 
judgment,  has  now  been  described,  but  the  student  will  not 
have  a  complete  view  of  the  history  of  a  suit  without  taking 
some  notice  of  two  other  subsequent  proceedings.  These  are 
the  writ  of  execution  and  the  writ  of  error.^ 

Upon  judgment,  the  successful  party  is,  generally,  entitled 
to  execution,  to  put  in  force  the  sentence  that  the  law  has 
given.  For  this  purpose  he  sues  out  a  writ,  addressed  to  the 
sheriff,  commanding  him,  according  to  the  nature  of  the  case, 
either  to  give  the  plaintiff  possession  of  the  lands,  or  to  enforce 
the  delivery  of  the  chattel  which  was  the  subject  of  the  action,  or 
to  levy  for  the  plaintiff  the  debt  or  damages  and  costs  recovered, 
or  to  levy  for  the  defendant  his  costs ;  and  that  either  upon 
the  body  of  the  opposite  party ,^  his  lands,  or  goods,  or,  in  some 
cases,  upon  his  body,  lands,  and  goods  ;  the  extent  and  manner 
of  the  execution  directed  always  depending  upon  the  nature  of 
the  judgment.  Like  the  judgment,  writs  of  execution  are 
supposed  to  be  actually  awarded  by  the  judges  in  court,  but 
no  such  award  is  generally  made.  The  attorney,  after  sign- 
ing final  judgment,  sues  out  of  the  proper  oflice  a  writ  of 

1  Steph.  PI.  138.  debt   has  taken  away  this  method  of 

2  Ibid.  141.  execution. 
8  The  abolition  of  imprisonment  for 


222  COMMON-LAW  PLEADING. 

execution  in  the  form  to  which  he  conceives  he  would  be 
entitled  upon  such  judgment  as  he  has  entered,  if  such  entry 
has  been  actually  made,  and,  if  not  made,  then  upon  such  as  he 
thinks  he  is  entitled  to  enter ;  and  he  does  this,  of  course,  upon 
peril  that  if  he  takes  a  wrong  execution,  the  proceeding  will 
be  illegal  and  void,  and  the  opposite  party  entitled  to  redress.^ 

Writs  of  Error. 

After  final  judgment  is  signed,  the  unsuccessful  party  may 
bring  a  writ  of  error ;  and  this,  if  obtained  and  allowed  before 
execution,  suspends  (generally  speaking)  the  latter  proceeding 
till  the  former  is  determined.  A  writ  of  error  is  an  original 
writ,  and  therefore  is  sued  out  of  Chancery,  directed  to  the 
judges  of  the  court  in  which  judgment  was  given,  and  com- 
manding them,  in  some  cases,  themselves  to  examine  the 
record  ;  in  others,  to  send  it  to  another  court  of  appellate 
jurisdiction  to  be  examined,  in  order  that  some  alleged  error 
in  the  proceedings  may  be  corrected.  The  first  form  of  writ. 
Called  a  writ  of  error  coram  nobis  (or  vobisj  before  us  (or  you) 
is  where  the  alleged  error  consists  of  matter  of  fact ;  the 
second,  called  a  writ  of  error  generally,  where  it  consists  of 
matter  of  law. 

The  words  coram  nobis  (before  us,  the  king)  were  used 
when  reference  was  made  to  the  King's  Bench,  where  the  king 
was  supposed  in  contemplation  of  law  to  actually  sit ;  the 
Common  Pleas  was  designated  by  the  other  formula,  coram 
vobis  (before  you,  the  judges). 

When  a  writ  of  error  is  obtained,  the  whole  proceedings,  to 
final  judgment  inclusive,  are  then  always  actually  entered  (if 
this  has  not  before  been  done)  on  record  ;  and  the  object  of 
the  writ  of  error  is  to  reverse, the  judgment  for  some  error 
of  fact  or  law  that  is  supposed  to  exist  in  the  proceedings  as 
so  recorded.  It  will  be  proper  here  to  explain  in  what  such 
error  may  consist. 

Where  an  issue  in  fact  has  been  decided,  there  is  (as 
formerly  observed)  no  appeal  in  the  English  law  from  its 
decision,  except  by  way  of  motion  for  a  new  trial ;  and  its 

1  Steph.  PL  142. 


OP  THE   PROCEEDINGS   IN   AN   ACTION.  223 

being  wrongly  decided  is  not  error  in  that  technical  sense  to/ 
which  a  writ  of  error  refers.     So,  if  a  matter  of  fact  should 
exist,  which  was  not  brought  into  issue,  but  which,  if  brought 
into  issue,  would  have  led  to  a  different  judgment,  the  exist- 
ence of  such  fact  does  not,  after  judgment,  amount  to  error  in 
the  proceedings.    For  example,  if  the  defendant  has  a  release, 
but   does   not   plead   it  in  bar,  its  existence  can  not,  after 
judgment,  on  the  ground  of  error  or  otherwise,  in  any  manner 
be  brought  forward.     But  there  are  certain  facts  wliich  affect    . 
the  validity  and  regularity  of  the  legal  decision  itself ;  such  as 
the  defendant  having,  while  under  age,  appeared  in  suit  by ; 
attorney,  and  not  by  guardian,  or,  the  plaintiff  or  defendani;?' 
having  been  a  married  woman  when  the  suit  was  commenced'.  / 
Such   facts   as   these,  however  late  discovered  and  alleged,/ 
are  errors  in  fact,  and  sufficient  to  traverse  the  judgmenjt 
upon  writ  of  error.     To  such  cases  the  writ  of  error  coram 
nobis   applies,  because   the   error  in   fact  is   not  the   error 
of  the  judges,  and  reversing  it  is  not  reversing  their  own 
judgment.^ 

But  the  most  frequent  case  of  error  is  when,  upon  the  face  / 
of  the  record,  the  judges  appear  to  have  committed  a  mistake 
in  law.  This  may  be  by  having  wrongly  decided  an  issue  in 
law  brought  before  them  by  demurrer,  but  it  may  also  happen 
in  other  ways.  As  formerly  stated,  the  judgment  will 
generally  follow  success  in  the  issue.  It  is,  however,  a  prin- 
ciple necessary  to  be  understood,  in  order  to  have  a  right 
apprehension  of  the  nature  of  writs  of  error,  that  the  judges 
are,  in  contemplation  of  law,  bound,  before  in  any  case  they 
give  judgment,  to  examine  the  whole  record,  and  then  to 
adjudge  either  for  the  plaintiff  or  defendant,  according  to  the 
legal  right  as  it  may  on  the  whole  appear,  notwithstanding, 
or  without  regard  to,  the  issue  in  law  or  fact  that  may  have 
been  raised  and  decided  between  the  parties ;  and  this,  be- 
cause the  pleader  may,  from  misapprehension,  have  passed 
by  a  material  question  of  law  without  taking  issue  upon  it. 
Therefore,  whenever,  upon  examination  of  the  whole  record,  j 
right  appears  on  the  whole  not  to  have  been  done,  and  judg- 

1  Steph.  PI.  143. 


224  COMMON-LAW   PLEADING. 

ment  appears  to  have  been  given  for  one  of  the  parties,  when 
it  should  have  been  given  for  the  other,  this  will  be  error  in 
law.  And  it  will  be  equally  error,  whether  the  question  was 
raised  on  demurrer,  or  the  issue  was  an  issue  in  fact,  or  there 
was  no  issue,  judgment  having  been  taken  by  default,  con- 
fession, etc.  In  all  these  cases,  indeed,  except  the  first,  the 
judges  have  really  committed  no  error;  for  it  may  be  col- 
lected from  preceding  explanations,  that  no  record,  or  even 
copy  of  the  proceedings,  is  actually  brought  before  them, 
except  upon  demurrer  ;  but,  with  respect  to  a  writ  of  error, 
the  effect  is  the  same  as  if  the  proceedings  had  all  actually 
taken  place  and  been  recorded  in  open  court,  according  to  the 
fiction  and  supposition  in  law.  So,  on  the  same  principle, 
there  will  be  error  in  law  if  judgment  has  been  entered  in  a 
wrong  form,  inappropriate  to  the  case  ;  although,  as  we  have 
seen,  the  judges  have  in  practice  nothing  to  do  with  the  entry 
on  the  roll.  But,  on  the  other  hand,  nothing  will  be  error 
in  law  that  does  not  appear  on  the  face  of  the  record  ;  for 
matters  not  so  appearing  are  not  supposed  to  have  entered 
into  the  consideration  of  the  judges.  Upon  error  in  law,  the 
remedy  is  not  by  writ  of  error  coram  nobis  (for  that  would  be 
merely  to  make  the  same  judges  reconsider  their  own  judg- 
ment), but  by  a  writ  of  error  requiring  the  record  to  be  sent 
into  some  other  court  of  appellate  jurisdiction  (that  the  error 
may  be  there  corrected),  and  called  a  writ  of  error  generally.^ 

With  respect  to  the  writ  of  error  of  this  latter  description, 
it  is  further  to  be  observed,  that  it  cannot  be  supported  unless 
the  error  in  law  be  of  a  substantial  kind.  For  as,  by  the 
effect  of  the  statutes  of  amendments  and  jeofails,  errors  of 
mere  form  are  no  ground  for  arresting  the  judgment,  so,  by 
the  effect  of  the  same  statutes,  such  objections  are  now  in- 
sufficient to  support  a  writ  of  error,  though  at  common  law 
the  case  was  otherwise. 

When,  on  the  ground  of  some  error  in  law,  the  record  is 
removed  by  writ  of  error,  the  following  is  the  course  of 
appeal  among  the  different  courts  :  From  the  Common  Pleas 
the  record  may  be  removed  into  the  Court  of  King's  Bench, 

1  Steph.  PI.  144. 


OF  THE   PROCEEDINGS   IN   AN  ACTION.  225 

and  from  thence,  by  a  new  writ  of  error,  into  the  House  of 
Lords  ;  from  the  Exchequer  into  the  Court  of  Exchequer 
Chamber,  held  before  the  Lord  Chancellor,  Lord  Treasurer,  and 
the  judges  of  the  Courts  of  King's  Bench  and  Common  Pleas, 
and  from  thence  into  the  House  of  Lords ;  from  the  King's 
Bench,  in  proceedings  by  bill,  in  most  of  the  usual  actions, 
into  the  Court  of  Exchequer  Chamber,  held  before  the  judges 
of  the  Common  Pleas,  and  the  Barons  of  the  Exchequer,  and 
from  thence  into  the  House  of  Lords ;  in  proceedings  by 
original  writ,  into  the  House  of  Lords  in  the  first  instance.^ 

By  what  course  of  proceeding  the  error  in  the  record  is  dis- 
cussed and  corrected  in  the  appellate  court,  and  the  judg- 
ment reversed  or  affirmed,  it  is  not  material  to  the  purpose 
of  the  present  treatise  to  explain.  The  student  is  referred 
for  information  on  that  subject  to  the  many  valuable  books 
of  practice. 

1  Steph.  PI.  145.  This  whole  process  has  been  changed  by  the  Supreme  Court 
of  Judicature  Acts. 


16 


CHAPTER    VIII. 

OF  THE  KULES  OF  PLEADING. 

It  is  evident  that,  in  the  administration  of  justice,  there 
must  be  an  orderly  method  of  ascertaining  the  exact  point  or 
points  to  be  decided  in  each  particular  case.  The  contending 
parties  naturally  state  their  respective  claims.  By  the  rules 
of  the  Roman  law,  which  are  substantially  followed  in  the 
modern  civil  law  and  in  our  equity  jurisprudence,  the  respec- 
i\  I tive  parties  were  allowed  to  state  their  case  at  large,  i.  e.,  in  a 
/narrative  form  and  upon  all  points  involved.  This  process 
requires  a  review  by  the  court  of  the  opposing  statements  of 
the  litigants,  and  a  winnowing  by  it  of  the  substantial  ques- 
tions controverted  from  what  is  often  a  mass  of  irrelevant  and 
immaterial  (therefore  improper  and  unnecessary)  matter. 

The  common  law  of  England  pursued  from  the  outset  a  dif- 
ferent course.  It  obliged  the  parties  themselves  to  so  state 
their  cases,  or,  as  it  was  called,  to  plead,  as  to  develop  a  single 
issue  by  means  of  their  opposing  statements  ;  it  further  com- 
pelled them  to  agree  upon  this  issue  as  the  sole  point  for 
.decision  in  the  cause.  The  student  will  the  better  comprehend 
/this  by  a  study  of  the  following  practical  example  from  Minor's 
Institutes.^  He  will  especially  note  how,  in  the  supposed  case, 
the  proceedings  are  so  conducted  as  at  each  stage  to  put  aside 
matters  which  are  not  in  dispute,  until  finally  the  real  ques- 
tion controverted  is  alone  presented  for  decision.  Thus,  the 
execution  and  delivery  of  the  bond  sued  on,  and  of  the  release 
pleaded,  are  only  mentioned  to  be  conceded  and  passed  over, 
until  at  last  the  real  matter  to  be  decided  (the  alleged  offer 
to  deliver  the  horse)  is  affirmed  on  one  side  and  denied  on  the 
other,  and  thus  becomes  the  sole  issue  for  trial. 

1  Min.  Inst.  IV.  554,  555. 


OP  THE  RULES  OF  PLEADING.  227 


Abstract  op  Proceedings  in  a  Supposed  Cause. 

A.  holds  a  bond  of  Z.'s  forv$lyff>/  on  which  he  proposes  to 
institute  suit  by  causing  Z.  to  be  summoned  to  answer  his 
complaint,  which  purports  to  be  a  plea  of  debt.  At  the  return- 
day  of  the  summons  (supposing  it  to  be  returned  "  executed  "J, 
and  from  time  to  time  afterwards,  the  following  altercations 
and  proceedings  might  occur :  — 

Declaration.  A.  —  This  man  Z.  owes  me  $1,000,  as  ap- 

pears by  his  bond  here,  which  I  now  produce 
to  the  court,  yet  he  has  not  paid  me. 

Oyer.  Z.  —  Let  me  hear  it  read  f 

Pleas.  I  say  it  does  not  bind  me  : 

1,  Because  I  was  an  infant  when  I  executed 
it; 

2,  Because  it  was  founded  on  an  usurious 
consideration  ; 

3,  Because  it  is  not  my  deed  ;  and 

4,  Because  the  plaintiff  afterwards  released 
the  bond  to  me  by  this  writing  here,  under  his 
seal,  which  I  now  produce  to  the  court. 

Demurrer  to  Pleas.  A.  —  Stop  !     I  say  you  cannot  make  more 

than  one  distinct  ansiver  to  my  demand ;  and 
I  submit  it  to  the  court. 

Joinder  in  Demurrer.  Z.  —  Let  the  court  say  ! 

Judgmt.  on  Demurrer.  CouRT.  —  Defendant  by  the  common  law  (it 
is  otherwise  by  statute)  can  make  only  one 
answer. 

Deft,  relies  on  4th  plea.  Z.  —  Then  I  rely  on  the  fourth,  —  the  re- 
lease. 

Replication.  A.  —  I  say  that  the  so-called  release  does 

not  bar  my  demand : 

1,  Because  it  was  obtained  from  me  by 
duress  of  violent  threats  ; 

2,  Because  I  delivered  it  to  W.  as  an  escrow, 
to  take  effect  only  on  condition  that  Z.  should 
deliver  me  a  horse  the  next  day,  which  he  did 
not  do. 

Demurrer  to  Replic'n.  Z.  —  Stop  !  I  say  you  cannot  make  more 
than  one  distinct  answer  to  my  plea;  and  I 
submit  it  to  the  court. 

Joinder  in  Demurrer.         A.  —  Let  the  COurt  say ! 


228 


COMMON-LAW   PLEADING. 


Jndgmt.  on  Demurrer.      CouRT,  —  Plaintiff  is  not  permitted  by  the 

law  to  make  mo7-e  than  one  answer. 
Plaintiff  relies  on  Sec-     A.  —  Then  I  rely  on  the  second,  —  that  the 


ond  Replication. 


Rejoinder. 


Demurrer  to  rejoinder 


Joinder  in  Demurrer 

Judgment     {quasi) 

Demurrer. 
Demurrer    withdrawn 

with  leave. 


Leave  given. 
Sur-Rejoinder    and 
sue  tendered. 

Similiter  and  Issue. 
Jurj  Impanelled. 


Verdict. 


Judgment. 


so-called  release  was  delivered  by  me  as  an 
escrow. 

Z.  —  I  offered  to  deliver  the  horse  and  you 
refused  to  receive  it. 

A.  —  Stop  !  I  admit  that  you  offered  to  de- 
liver the  horse,  and  that  I  refused  to  receive 
it ;  but  I  say  that  that  is  not  a  sufficient  answer 
to  my  replication,  for  you  do  not  say  that  you 
have  ever  since  been  ready  to  deliver  it  ;  I  sub- 
mit it  to  the  court,  if  that  is  not  necessary. 

Z.  —  Let  the  court  say  ! 
on     CouKT.  —  I  am  inclined  to  think  it  is  not 
necessary  ;  but  I  will  take  time  to  consider. 

A.  —  I  will  not  trouble  the  court  to  consider 
it ;  but  with  its  permission  I  will  withdraw 
my  objection  to  the  rejoinder,  and  answer  to 
the  fact. 

Court.  —  Leave  is  given  of  course. 
Is-     A.  —  I  say  that  the  defendant  did  not  offer 
to  deliver  me  the  horse  as  he  has  said  ;  and  I 
submit  it  to  the  country. 

Z.  —  And  I  do  the  like. 

And  thereupon  comes  a  jury,  to  wit  Wouter 
Van  Twiller,  and  eleven  others,  who  being 
duly  elected,  tried,  and  sworn  the  truth  to 
speak  upon  the  issue  joined,  upon  their  oath 
do  say  that  the  said  Z.  did  not  offer  to  deliver 
the  horse  to  the  said  A.  as  the  said  Z.  hath  in 
pleading  alleged,  and,  therefore,  they  find  for 
the  plaintiff  the  debt  in  the  declaration  men- 
tioned, with  lawful  interest  from  the  1st  day 
of  January,  18  — ,  until  paid.  Wherefore  it 
is  considered  by  the  court  that  the  plaintiff 
recover  against  the  defendant,  the  sum  of  one 
thousand  dollars,  with  interest  thereon,  after 
the  rate  of  six  'per  centuw,  per  annum,  from  the 
1st  day  of  January,  in  the  year  of  our  Lord 

eighteen  hundred  and until  paid,  and  his 

costs  by  him  about  his  suit  in  this  behalf  ex- 
pended J  and  the  said  defendant  in  mercy,  etc. 


OF  THE  RULES  OF  PLEADING.  229 

Mr.  Stephen  is  of  the  opinion  that  this  characteristic  of  the 
English  law  is  to  be  attributed  to  the  original  practice  of  oral 
pleading,  and  that  it  was  adopted  to  avoid  charging  the  mem- 
ory with  too  many  and  too  complicated  points  of  dispute. 
Another  reason  assigned  for  its  development  is  that  the  dif- 
ferent modes  of  trial  formerly  existing  required  the  prelim- 
inary settlement  of  the  exact  question  to  be  tried,  in  order 
that  the  particular  mode  of  trial,  appropriate  to  that  question, 
might  be  determined. 

Whatever  is  its  origin,  it  is  certain  that  this  method  has  been 
followed  in  the  English  courts  from  the  time  of  Henry  II.i 

The  introduction  of  an  issue  was  not  the  only  object  of  this 
system.  An  issue  might  be  reached  and  yet  be  of  such  nature 
as  not  to  involve  the  merits  of  the  question  to  be  decided. 
This  would,  of  course,  render  the  trial  useless,  and  would,  as 
we  have  seen,  be  occasion  for  the  awarding  of  a  repleader. 
Therefore,  to  avoid  this  mishap,  the  issue  must  in  all  cases  be  / 
ynaterial  to  the  question  to  be  tried.  / 

Again,  it  was  important  to  the  judges,  when  the  contention 
was  conducted  orally,  that  the  process  should  be  as  brief  and  as 
simple  as  possible.  Therefore,  it  was  originally  established  as 
a  rule  that  the  pleaders  should  be  confined  to  a  single  issue  in 
respect  of  each  single  claim.  . 

It  was  hardly  less  essential  that  the  issue  should  be  specific  j 
or,  as  it  was  called,  certain.^  This  was  required  in  order  that 
the  mode  of  decision  might  be  marked  out  by  the  issue  itself. 
But  especially  was  it  demanded  by  the  nature  of  the  trial  by 
jury  as  originally  practised.  As  the  jurors  were  then  witnesses, 
the  sheriff  was  directed  to  summon  them  from  the  immediate 
neighborhood  where  the  facts  occurred,  and  from  among  those 

1  These  rules  of  pleading  do  not  cated  thing),  and  might  always  there- 
seem  to  have  been  originally  of  legis-  after  be  identified  as  such,  and  therefore 
lative  enactment,  or  to  have  had  any  not  subject  to  be  tried  again.  Washing- 
authority,  except  usage  or  judicial  ton,  &c.,  S.  P.  Co.  v.  Sickles,  24  How. 
regulation.  They  grew  gradually  into  341-346.  Certainty  in  the  issue  was 
an  entire  and  a  connected  system  of  also  necessary  in  connection  with  the 
pleading.      Steph.    Pi.    147.  evidence  to  be  adduced  on  the  trial.     A 

2  Certainty,  in  the  broad  sense  of  that  definite  law  of  evidence  is  an  offshoot 
word,  was  required  in  tlie  pleadings  and  from  the  system  of  special  pleading, 
issue  in  order  that    the   matter  tried  Tyler's  Pleading,  48. 

might  become  res  judicata  (an  adjudi- 


230  COMMON-LAW   PLEADING. 

persons  who  best  knew  the  truth  of  the  matter.  Hence  the 
issue  must  specify  the  place  where  the  alleged  matter  was  said 
to  have  occurred,  and  also  the  time  and  other  particulars  of 
the  transaction  in  question  in  order  to  guide  the  sheriff  in 
summoning  proper  persons  as  jurors. 

It  is  apparent,  from  the  foregoing  considerations,  that 
the  chief  objects  of  pleading  are  these :  That  the  parties 
be  brought  to  an  issue,  and  that  the  issue  so  produced  be 
material,  single,  and  certain  in  its  quality.  Moreover,  this 
result  should  be  reached  without  obscurity  in  the  process,  and 
further,  without  prolixity  and  delay.  The  whole  body  of  the 
established  rules  of  pleading  has  been  accordingly  distributed 
by  Mr.  Stephen  under  the  following  heads :  — 

I.  Rules  which  tend  simply  to  the  Production  of  an 
Issue. 

II.  Rules  which  tend  to  secure  the  Materiality  op 
the  Issue. 

III.  Rules  which  tend  to  produce  Singleness  or  Unit>- 
iN  the  Issue. 

IV.  Rules  which  tend  to  produce  Certainty  or  Par- 
ticularity IN  THE  Issue. 

V.  Rules  which  tend  to  prevent  Obscurity  and  Con- 
fusion IN  Pleading. 

YI.  Rules  which  tend  to  prevent  Prolixity  and  Delay 
in  Pleading. 
Vn.   Certain  Miscellaneous  Rules. 

These  rules  and  their  discussion  will  lay  before  the  student 
a  general  but  complete  view  of  the  whole  system  of  pleading. 
The  following  pages  will  consist  in  the  main  of  the  text  of 
Mr.  Stephen's  work  (2d  London  edition),  with  such  departures 
therefrom,  principally  by  way  of  illustration  and  detail,  as 
experience  has  suggested. 


CHAPTER    IX. 

OF  RULES  WHICH  TEND  SIMPLY  TO   THE  PRODUCTION 
OF  AN  ISSUE, 

Upon  examination  of  the  system  of  allegation  by  which  the 
parties  are  brought  to  issue,  as  that  process  has  been  described, 
it  will  be  found  to  resolve  itself  into  the  following  fundamental 
rules  or  principles  :  — 

I.  After  the  Declaration  the  Parties  must  at  each 
STAGE  Demur,  or  plead  by  Way  of  Traverse,  or  by  Way 
OF  Confession  and  Avoidance. 

J  I,   Upon  a  Traverse,  Issue  must  be  tendered. 

III.  The  Issue,  when  well  tendered,  must  be  accepted. 

Either  by  virtue  of  the  first  rule,  a  demurrer  takes  place 
(which  is  a  tender  of  an  issue  in  law),  or,  by  the  joint  opera- 
tion of  the  first  two,  the  tender  of  an  issue  in  fact ;  and  then, 
by  the  last  of  these  rules,  the  issue  so  tendered,  whether  in 
fact  or  in  law,  is  accepted,  and  becomes  finally  complete.  It 
is  by  these  rules,  therefore,  that  the  production  of  an  issue  is 
effected ;  and  they  will  consequently  form  the  subject  of  the 
present  chapter. 

Rule  I.  After  the  Declaration,  the  Parties  must  at 
each  stage  Demur,  or  plead  by  Way  of  Traverse,  or  by 
Way  of  Confession  and  Avoidance. 

Exceptions  :  (1 )    Where  a  Dilatory  Plea  is  interposed. 

(2)  Pleadings  in  Estoppel. 

(3)  Wliere  a  New  Assignment  is  necessary. 

This  rule  has  two  branches  — 

1.  The  party  must  demur  or  plead.  One  or  other  of  these 
courses  he  is  bound  to  take  (while  he  means  to  maintain  his 


^ 


232  COMMON-LAW  PLEADING. 

action  or  defence)  until  issue  be  tendered.  If  he  does  neither, 
but  confesses  the  right  of  the  adverse  party,  or  says  nothing, 
the  court  immediately  gives  judgment  for  his  adversary  ;  in 
the  former  case,  as  by  confession  ;  in  the  latter,  by  non  jjros. 
or  nil  dicit. 

2.  If  the  party  pleads,  it  must  either  be  by  way  of  traverse 
or  of  confession  and  avoidance.  If  his  pleading  amount  to 
neither  of  these  modes  of  answer,  it  is  open  to  demurrer  on 
that  ground.^ 

Such  is  the  effect  of  this  rule  generally  and  briefly  consid- 
ered. But,  for  its  complete  illustration,  it  will  be  necessary 
to  enter  much  more  deeply  into  the  subject,  and  to  consider 
at  large  the  doctrines  that  relate  both  to  demurrers  and  to 
pleadings. 

I.  Of  Demureers. 

Under  this  head  it  is  intended  to  treat,  (1)  of  the  nature  and 
properties  of  a  demurrer ;  (2)  of  the  effect  of  passing  a  fault  by 
without  demurrer,  and  pleading  over ;  (3)  of  the  considerations 
which  determine  the  pleader  in  his  election  to  demur  or 
plead. 

(1)  Of  the  Nature  and  Properties  of  a  Demurrer. 

A  demurrer  may  be  for  insufficiency  either  in  substance  or 

in  form  ;  that  is,  it  may  be  either  on  the  ground  that  the  case 

shown  by  the  opposite  party  is  essentially  insufficient,  or  on 

\the   ground  that  it  is  stated  in  an  inartificial  manner ;  for 

"  the  law  requires  in  every  plea  "  (and  the  observation  equally 

applies  to  all  other  pleadings)  "  two  things :  the  one  that  it 

be  in  matter  sufficient,  the  other  that  it   be   deduced  and 

expressed   according    to    the   forms   of  law ;   and   if   either 

^the  one  or  the  other  of  these  be  wanting,  it  is  cause  of  de- 

^murrer."  2     A  violation  of  any  of  the  rules  of  pleading  that 

will  be  hereafter  stated  is,  in  general,  ground  for  demurrer  ; 

and  such  fault  occasionally  amounts  to  matter  of  substance, 

but  usually  to  matter  oiform  only. 

1  Reg.  Plac.  59;    21  Hen.  VL   12;         2  Per  Lord  Hobart,  Colt  v.  Bishop 
5  Hen.  VII.  13  a,  14  a,  b  ;  1  Tidd,  665,    of  Coventry,  Hob.  164. 
8th  ed. ;  Merceron  v.  Dowson,  5  Barn.  & 
Cress.  479. 


RULES    WHICH    TEND    TO    THE    PRODUCTION    OF    AN    ISSUE.       203 

A  demurrer,  as  in  its  nature,  so  also  in  its  forvi,  is  of  twfll 
kinds  :  it  is  either  general  or  special,  k.  general  demurrer 
excepts  to  the  sufficiency  in  general  terms,  without  show- 
ing specifically  the  nature  of  the  objection ;  a  special  de- 
murrer adds  to  this  a  specification  of  the  particular  ground 
of  exception.^  A  general  demurrer  is  sufficient  where  the 
objection  is  on  a  matter  of  substance.  A  special  demurrer 
is  necessary  where  it  turns  on  matter  of  form  only  ;  that  is^ 
where,  notwithstanding  such  objection,  enough  appears  to 
entitle  the  opposite  party  to  judgment,  as  far  as  relates  to 
the  merits  of  the  cause.  For,  by  two  statutes,  27  Eliza- 
beth, c.  5,  and  4  Anne,  c.  16,  passed  with  a  view  to  the  dis- 
couragement of  merely  formal  objections,  it  is  provided,  in 
nearly  the  same  terms,  that  the  judges  "  shall  give  judgment 
according  as  the  very  right  of  the  cause  and  matter  in  law 
shall  appear  unto  them,  without  regarding  any  imperfection, 
omission,  defect,  or  want  of  form,  except  those  only  which  the 
party  demurring  shall  specially  and  particularly  set  down  and 
express,  together  with  his  demurrer,  as  causes  of  the  same  ;  " 
the  latter  statute  adding  this  proviso  :  "  So  as  sufficient  matter 
appear  in  the  said  pleadings,  upon  which  the  court  may  give 
judgment  according  to  the  very  right  of  the  cause."  Since 
these  statutes,  therefore,  no  mere  matter  of  form  can  be  ob- 
jected on  a  general  demurrer ;  but  the  demurrer  must  be  in 
the  special  form,  and  the  objection  specifically  stated.^  But,| 
on  the  other  hand,  it  is  to  be  observed  that,  under  a  special  \ 
demurrer,  the  party  may,  on  the  argument,  not  only  take  ad-  '■■. 
vantage  of  the  particular  faults  which  his  demurrer  specifies,  \ 
but  also  of  all  such  objections  in  substance,  or  regarding  "  the  :| 
very  right  of  the  cause  "  (as  the  statutes  express  it)  as  do  not  i 
require,  under  those  statutes,  to  be  particularly  set  down.^  It' 
follows,  therefore,  that  unless  the  objection  be  clearly  of  this 
substantial  kind,  it  is  the  safer  course,  in  all  cases,  to  demur 

1  Co.  Litt.  72  a;  Reg.  Plac.  125, 126;  Kenyon,  10  East  139;  Bowdcll  v. 
Bac.  Ab.  Pleas,  &c.  n.  5.  Parsons,   ibid.   359 ;   Bolton   v.  Bisliop 

2  For  examples  of  cases  where  a  of  Carlisle,  2  H.  Bl.  259.  A  demurrer 
special  demurrer  is  considered  as  neces-  to  a  plea  in  abatement  need  not  be  spe- 
sary,  and  where,  on  the  other  hand,  a  cial.     (2  Saund.  2  b,  n.  k.) 

general  one  is  sufficient,  see  Buckley  v.        '   Chit.  PI.  576. 


234  COMMON-LAW   PLEADING. 

specially.!  Yet,  where  a  general  demurrer  is  plainly  sufficient, 
it  is  more  usually  adopted  in  practice  ;  because,  the  eifect  of 
the  special  form  being  to  apprise  the  opposite  party  more  dis- 
tinctly of  the  nature  of  the  objection,  it  is  attended  with  the 
inconvenience  of  enabling  him  to  prepare  to  maintain  his 
pleading  in  argument,  or  of  leading  him  to  apply  the  earlier 
to  amend.  With  respect  to  the  degree  of  particularity  with 
which,  under  these  statutes,  the  special  demurrer  must  assign 
the  ground  of  objection,  it  may  be  observed,  that  it  is  not  suf- 
ficient to  object,  in  general  terms,  that  the  pleading  is  "  un- 
certain, defective,  informal,"  or  the  like ;  but  it  is  necessary 
to  show  in  ivhat  respect  uncertain,  defective,  or  informal.  ^ 
i  ^"Effect  of  a  Demurrer.  With  respect  to  the  effect  of  a 
demurrer,  it  is,  first,  a  rule  that  a  demurrer  admits  all  such 
matters  of  fact  as  are  sufficiently  pleaded.^  The  meaning  of 
this  rule  isj  that  the  party,  having  had  his  option  whether  to 
plead  or  demur ^  shall  be  taken,  in  adopting  the  latter  alterna- 
tive, to  admit  that  he  has  no  ground  for  denial  or  traverse. 
A  demurrer  is  consequently  an  admission  that  the  facts  alleged 
are  true ;  and  therefore  the  only  question  for  the  court  is, 
whetlier,  assuming  such  facts  to  be  true,  they  sustain  the  case 
of  the  party  by  whom  they  are  alleged.  It  will  be  observed, 
however,  that  the  rule  is  laid  down  with  this  qualification, 
that  the  matter  of  fact  be  sufficiently  pleaded.  For,  if  it  be 
not  pleaded  in  a  formal  and  sufficient  manner,  it  is  said  that 
a  demurrer,  in  this  case,  is  no  admission  of  the  fact.*  But 
this  is  to  be  understood  as  subject  to  the  alterations  that  have 
been  introduced  into  the  law  of  demurrer  by  the  statutes 
already  mentioned  ;  and  therefore,  if  the  demurrer  be  general., 
instead  of  special.,  it  amounts,  as  it  is  said,  to  a  confession, 
though  the  matter  be  informally  pleaded.^ 

Again,  it  is  a  rule  that  on  demurrer  the  court  will  consider 
the  whole  record.,  and  give  judgment  for  the  party  who,  on  the 


1  1  Arch.  313 ;  Clue  v.  Baily,  1  Vent.  1    East.   634  ;    Gtrndry  v.   Feltham,    1 
240.  T.  R.  334. 

2  1  Saund.  160,  n.  1  ;  337  b,  n.  3.  *  Com.  Dig.  Pleader,  Q.  6. 

3  Bac.   Ab.  Pleas,  &c.  n.  3  ;    Com.         5  i  Saund.  337  b,  n.  3  ;  I  Arch.  318. 
Dig.  Pleader,  Q.  5 ;  Nowlan  v.  Geddes, 


RULES  WHICH   TEND   TO    THE   PRODUCTION   OP   AN   ISSUE.      235 

\  whole,  appears  to  he  entitled  to  it}  Thus,  on  demurrer  to 
-the  replication,  if  the  court  think  the  replication  bad,  but 
perceive  a  substantial  fault  in  the  plea,  they  will  give  judg- 
ment, not  for  the  defendant,  but  the  plaintiff,'-^  provided 
the  declaration  be  good ;  but  if  the  declaration  also  be  bad 
in  substance,  then,  upon  the  same  principle,  judgment 
would  be  given  for  the  defendant.^  This  rule  belongs  to 
the  general  principle  already  stated,  that  when  judgment  is 
to  be  given,  whether  the  issue  be  in  law  or  fact,  and 
whether  the  cause  have  proceeded  to  issue  or  not,  the 
court  is  always  bound  to  examine  the  whole  record,  and 
adjudge  for  the  plaintiff  or  defendant,  according  to  the 
legal  right,  as  it  may  on  the  whole  appear.  It  is,  however, 
subject  to  the  following 

Exceptions  :  First,  if  the  plaintiff  demur  to  a  plea  in  abate-, 
ment,  and  the  court  decide  against  the  plea,  they  will  give  judg-i 
ment  of  respondeat  ouster,  without  regard  to  any  defect  in  the  \ 
declaration.* 

Secondly,  though  on  the  whole  record  the  right  may! 
appear  to  be  with  the  plaintiff,  the  court  will  not  adjudge  in  i 
favor  of  such  right,  unless  the  plaintiff  have  himself  put  I 
his  action  upon  that  ground. 

Example :  Where,  on  a  covenant  to  perform  an  award,  and 
not  to  prevent  the  arbitrators  from  making  an  award,  the  plaintiff 
declared  in  covenant,  and  assigned  as  a  breach  that  the  defendant 
would  not  pay  the  sum  awarded,  and  the  defendant  pleaded  that, 
before  the  award  made,  he  revoked,  by  deed,  the  authority  of  the 
arbitrators,  to  which  the  plaintiff  demurred,  the  court  held  the 
plea  good,  as  being  a  sufficient  answer  to  the  breach  alleged,  and 
therefore  gave  judgment  for  the  defendant,  although  they  also 
were  of  opinion  that  the  matter  stated  in  the  plea  would  have 
entitled  the  plaintiff  to  maintain  his  action,  if  he  had  alleged,  by 
way  of  breach,  that  the  defendant  prevented  the  arbitrators  from 
making  their  award.^ 

1  Com.  Dig.  Pleader,  M.  1,  M.  2;  8  Piggot's  Case,  5  Co.  Eep.  29  a; 
Bac.  Ab.  Pleas,  &c.  A.  n.  3 ;  5  Co.  Rep.    Bates  v.  Cort,  2  Barn.  &  Cress.  474. 

29  a;     1  Saund.  285,  n.  5;    Foster  v.         *  Belasyse   v.   Hester,   Lutw.    1.592; 

Jackson,  Hob.  56;   Anon.  2  Wils.  150;  Routh  v.  Weddell,  Ibid.  1667;    Hastrop 

Le  Bret  v.  Papillon,  4  East.  502.  r.  Hastings,  1  Salk.  212;  Rich  r.  Pilking 

2  Anon.    2   Wils.   150;    Thomas  i;  ton,  Carth.  172. 

Heathom,  2  Bam.  &  Cress.  477.  6  Marsh  v.  Bulteel,  5  B.  &  Aid.  507. 


236  COMMON-LAW  PLEADING. 

Lastly,    the    court,    in    examining    the    whole    record,   tol 
i    adjudge  according  to  the  apparent  right,  will  consider  only  \  '"^ 
\   the  right  in  matter  of  substance,  and  not  in  respect  of  mere  \ 

form,   such   as    should   have    been   the    subject    of   special  '^ 

demurrer. 

Examijle:  Where  the  declaration  was  open  to  an  objection 
of  form,  such  as  should  have  been  brought  forward  by  special 
demurrer  —  the  plea  bad  in  substance  —  and  the  defeudant 
demurred  to  the  replication,  the  court  gave  judgment  for  the 
plaintiff,  in  respect  of  the  insufficiency  of  the  plea,  without 
regard  to  the  formal  defect  in  the  declaration.^ 

(2)  Effect  of  Pleading  over  without  Demurrer. 

It  has  been  shown  that  it  is  the  effect  of  a  demurrer  to 
admit  the  truth  of  all  matters  of  fact  sufficiently  pleaded 
on  the  other  side  ;  but  it  cannot  be  said,  e  converso,  that  it 
is  the  effect  of  a  pleading  to  admit  the  sufficiency  in  law 
of  the  facts  adversely  alleged.  On  the  contrary,  as  has 
been  seen  upon  a  demurrer  arising  at  a  subsequent  stage 
of  the  pleading,  the  court  will  take  into  consideration,  re- 
trospectively, the  sufficiency  in  law  of  matters  to  which  an 
answer  in  fact  has  been  given.  And,  as  has  been  shown, 
even  after  an  issue  in  fact  and  verdict  thereon,  the  court 
are  bound  to  give  judgment  on  the  whole  record,  and  therefore 
to  examine  the  sufficiency  in  law  of  all  allegations  through  the 
whole  series  of  the  pleadings  ;  and,  accordingly,  advantage 
may  often  be  taken  by  either  party  of  a  legal  insufficiency  in 
the  pleading  on  the  other  side,  by  motion  in  arrest  of  judg- 
ment or  motion  for  judgment  non  obstante  veredicto  ^  or  writ 
of  error,  according  to  the  circumstances  of  the  case. 

It  thus  appears  that  in  many  cases  a  party,  though 
he  has  pleaded  over  without  demurring,  may  nevertheless 
afterwards  avail  himself  of  an  insufficiency  in  the  pleading 
j  of  his  adversary.  But  this  is  not  universally  true.  For,  first, 
it  is  to  be  observed,  that  faults  in  the  pleading  are,  in  some 
cases,  aided  by  pleading  over? 

1  Humphreys  v.  Bethily,  2  Vent.  222.    those  in  which  the  plaintiff  moved  for 

2  According  to  English  practice,  as    judgment  non  obstante  veredicto. 

has  been  noted,  the  defendant  moved  in         ^  Com.  Dig.  Pleader,  C.  85,  E.  37 ; 
arrest  of  judgment  in  cases  similar  to    Co.  Litt.  303  b. ;  Pract.  Reg.  351  ;  Anon. 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OF  AN  ISSUE.      237 

Example  :  In  an  action  of  trespass,  for  taking  a  hook,  where 
the  plaintiff  omitted  to  allege  in  the  declaration  that  it  was  his 
hook,  or  even  that  it  was  in  his  possession,  and  the  defendant 
pleaded  a  matter  in  confession  and  avoidance,  justifying  his  tak- 
ing the  hook  out  of  the  plaintiff^ s  hand,  the  court,  on  motion  in 
arrest  of  judgment,  held,  that  as  the  plea  itself  showed  that  the 
hook  was  in  the  possession  of  the  plaintiff,  the  objection,  which 
would  otherwise  have  been  fatal,  was  cured.^ 

And  with  respect  to  all  objections  ofform^  it  is  laid  down  as 
a  general  proposition,  "  that  if  a  man  pleads  over  he  shall 
never  take  advantage  of  any  slip  committed  in  the  pleading 
of  the  other  side,  which  he  could  not  take  advantage  of  upon 
a  general  demurrer."  ^ 

Again,  it  is  to  be  observed  that  faults  in  the  pleading  are^ 
in  some  cases,  aided  hy  a  verdict.^  Thus,  if  the  grant  of  a 
reversion,  a  rent  charge,  an  advowson,  or  any  other  heredita- 
ment which  lies  in  grant,  and  can  only  be  conveyed  by  deed, 
be  pleaded,  such  grant  ought  to  be  alleged  to  have  been 
made  hy  deed,  and,  if  not  so  alleged,  it  will  be  ground  of 
demurrer ;  but  if  the  opposite  party,  instead  of  demurring, 
pleads  over,  and  issue  be  taken  upon  the  grant,  and  the  jury 
find  that  the  grant  was  made,  the  verdict  aids  or  cures  the 
imperfection  in  the  pleading,  and  it  can  not  be  objected  in 
arrest  of  judgment  or  by  writ  of  error.*  The  extent  and 
principle  of  this  rule  of  aider  hy  verdict  is  thus'  explained  in  a 
modern  decision  of  the  Court  of  King's  Bench  :  "  Where  a 
matter  is  so  essentially  necessary  to  be  proved  that,  had  it  not 
been  given  in  evidence,  the  jury  could  not  have  given  such  a 
verdict,  there  the  want  of  stating  that  matter  in  express  terms 
in  a  declaration,  provided  it  contains  terms  sufficiently  general 
to  comprehend  it  in  fair  and  reasonable  intendment,  will  be 

2  Salk.  519;  Fowie  v.  Welsh,  1  Barn.  &  Johnstone  v.  Sutton,  ibid.  545;   Nerot 

Cress.  29  ;  Fletcher  v.  Pogson,  3  Barn.  &  v.  Wallace,  3  T.  R.   25  ;    Jackson  v. 

Cress.  192.  Pesked,   1    M.  &  S.  234;    Campbell  v. 

1  Brooke  v.  Brooke,  Sid.  184,  cited  Lewis,  3  Barn.  &  Aid.  392;  Keywortli 
Bac.  Ab.  Trespa.ss,  603.  ^'.  Hill,  ihld.  685 ;    Pippet  v.  Hearn,  5 

2  Per  Holt,  C.  J. ;  Anon.  2  Salk.  519 ;  Barn.  &  Aid.  634  ;  Lord  Hiintiiigtower 
Bac.  Ab.  Pleas,  &c.  322.  v.  Gardiner,  1  Barn.  &  Cress.  297  ;  Price 

'  Com.  Dig.  Pleader,  C.  87  ;  1  Saund.    v.  Seaman,  4  Barn.  &  Cre.'^s.  525. 
228,  n.  I  ;    Weston  v.  Mason,  3  Burr.         *  1  Saund.  228  a,  n.  1 ;  Lightfoot  v 
1725;   Spieres  v.  Parker,  1  T.  R.  141;    Brightman,  Hutt,  54, 


238  COMMON-LAW  PLEADING. 

cured  by  a  verdict ;  and  where  a  general  allegation  must,  in 
fair  construction,  so  far  require  to  be  restricted  that  no  judge 
and  no  jury  could  have  properly  treated  it  in  an  unrestrained 
sense,  it  may  reasonably  be  presumed,  after  verdict,  that  it 
was  so  restrained  at  the  trial."  ^  In  entire  accordance  with 
this  are  the  observations  of  Mr.  Sergeant  Williams :  "  Where 
there  is  any  defect,  imperfection,  or  omission  in  any  pleading, 
whether  in  substance  or  form,  which  would  have  been  a  fatal 
objection  upon  demurrer,  yet  if  the  issue  joined  be  such  as 
necessarily  required,  on  the  trial,  proof  of  the  facts  so  de- 
fectively or  imperfectly  stated  or  omitted,  and  without  which 
it  is  not  to  be  presumed  that  either  the  judge  would  direct 
the  jury  to  give  or  the  jury  would  have  given  the  verdict,  such 
defect,  imperfection,  or  omission  is  cured  by  the  verdict."  ^ 
It  is,  however,  only  where  such  "  fair  and  reasonable  intend- 
ment "  can  be  applied  that  a  verdict  will  cure  the  objection  ; 
and,  therefore,  if  a  necessary  allegation  be  altogether  omitted 
in  the  pleading,  or  if  the  pleading  contain  matter  adverse  to 
the  right  of  the  party  by  whom  it  is  alleged,  and  so  clearly 
expressed  that  no  reasonable  construction  can  alter  its  mean- 
ing, a  verdict  will  not  aid.^ 

Example :  Where  the  plaintiff  brought  an  action  of  trespass 
on  the  case,  as  being  entitled  to  the  reversion  of  a  certain  yard 
and  wall,  to  which  the  declaration  stated  a  certain  injury  to  have 
been  committed,  but  omitted  to  allege  that  the  reversion  was,  in 
fact,  prejudiced,  or  to  show  any  grievance  which,  in  its  nature, 
would  necessarily  prejudice  the  reversion,  the  court  arrested  the 
judgment,  after  a  verdict  had  been  given  in  favor  of  plaintiff, 
and  held  the  fault  to  be  one  which  the  verdict  could  not  cure.* 

Lastly,  it  is  to  be  observed,  fhat  at  certain  stages  of  the  cause 
all  objections  of  form  are  cured  hy  the  different  statutes  of 
jeofails  and  amendments,  the  cumulative  effect  of  which  is 
to  provide  that  neither  after  verdict  or  judgment  by  con- 
fession, nil  dicit,  or  non  sum  informatus,  can  the  judgment  be 
arrested  or  reversed  by  any  objection  of  that  kind. 

1  Jackson  v.  Pesked,  1  M.  &  S.  234.       i;.   Wallace,   3    T.   R.   25  ;    "Weston   v. 

2  1  Saund.  228,  n.  1.  Mason,  3  Burr.  1725. 

8  Jackson  v.  Pesked,  uhi  supra  ;  Nerot         *  Jackson  v.  Pesked,  ubi  supra. 


RULES  WHICH   TEND   TO   THE   PRODUCTION   OP  AN  ISSUE.      239 

Example :  In  an  action  of  trespass,  where  the  plaintiff  omits 
to  allege  in  his  declaration  on  what  certain  day  the  trespass  was 
committed  (which  is  a  ground  of  demurrer),  and  the  defendant, 
instead  of  demurring,  jjleads  over  to  issue,  and  there  is  a  verdict 
against  him,  the  fault  is  cured  by  the  statutes  of  jeofails,^  if  not 
also  by  the  mere  effect  of  pleading  over. 

(3)  Considerations  by  which  the  Pleader  ought  to  be 

GOVERNED,  IN  MAKING  HIS  ELECTION  TO  DeMUR  OR  TO    PlEAD.^ 

He  is  first  to  consider  whether  the  declaration,  or  other, 
pleading  opposed  to  him,  is  sufficient  in  substance  and  in  form 
to  put  him  to  his  answer.  If  sufficient  in  both,  he  has  no 
course  but  to  plead.  On  the  other  hand,  if  insufficient  in 
either,  he  has  ground  for  demurrer ;  but  whether  he  should 
demur  or  not  is  a  question  of  expediency,  to  be  determined  by 
the  following  considerations  :  If  the  pleading  be  insufficient  in 
form,  he  is  to  consider  whether  it  is  worth  while  to  take  the 
objection,  recollecting  the  indulgence  which  the  law  allows  in 
the  way  of  amendment;  but  also  bearing  in  mind  that  the 
objection,  if  not  taken,  will  be  aided  by  pleading  over,  or, 
after  pleading  over,  by  the  verdict,  or  by  the  statutes  of 
amendments  and  jeofails.  And,  if  he  chooses  to  demur, 
he  must  take  care  to  demur  specially,  lest,  upon  general 
demurrer,  he  should  be  held  excluded  from  the  objection.  On 
the  other  hand,  supposing  an  insufficiency  in  substance,  he  is 
to  consider  whether  that  insufficiency  be  in  the  case  itself,  or 
in  the  manner  of  statement ;  for,  on  the  latter  supposition,  it 
might  be  removed  by  an  amendment,  and  it  may,  therefore, 
not  be  worth  while  to  demur.  And,  whether  it  be  such  as  an 
amendment  would  remove  or  not,  a  further  question  will 
arise,  whether  it  be  not  expedient  to  pass  by  the  objection  for 
the  present,  and  plead  over ;  for  a  party,  by  this  means,  often 
obtains  the  advantage  of  contesting  with  his  adversary,  in  the 
first  instance,  by  an  issue  in  fact,  and  of  afterwards  urging 

1  Bl.  Com.  ni.  394  * ;  1  Sannd.  228  c,  the  judgment  against  a  demurrer  is 
n.  I,  where  Mr.  Sergeant  Williams  cor-  generally  not  final,  hut  permits  the 
rects  a  mistake  in  the  passage  in  Black-  demurrant  to  plead  over,  the  pleader 
stone's  Commentaries.  now  has  more  freedom  in  making  his 

2  As,  according  to  modern  practice,  election. 


240  COMMON-LAW   PLEADING. 

the  objection  in  law  by  motion  in  arrest  of  judgment  or  writ 
of  error.i  This  double  aim,  however,  is  not  always  advisable ; 
for,  though  none  but  formal  objections  are  cured  by  the 
statutes  of  jeofails  and  amendments,  there  are  some  defects, 
of  substance  as  well  as/orm,  which  are  aided  by  pleading  over 
or  by  a  verdict ;  and  therefore,  unless  the  fault  be  clearly  of  a 
kind  not  to  be  so  aided,  a  demurrer  is  the  only  mode  of  objec- 
tion that  can  be  relied  upon.  The  additional  delay  and 
expense  of  a  trial  is  also  sometimes  a  material  reason  for 
proceeding  in  the  regular  way  by  demurrer,  and  not  waiting 
to  move  in  arrest  of  judgment  or  to  bring  a  writ  of  error. 
And  a  concurrent  motive  for  adopting  that  course  is,  that 
costs  are  not  allowed  when  the  judgment  is  arrested,^  nor 
where  it  is  reversed  upon  writ  of  error  ^  (each  party  in  these 
cases  paying  his  own);  but  on  demurrer  the  party  succeeding 
obtains  his  costs. 

II.    Of  Pleadings. 

Under  this  head  it  is  proposed  to  examine,  (A)  the  nature  and 
properties  of  traverses;  (B)  the  nature  and  properties  of  plead- 
ings in  confession  and  avoidance  ;  (C)  the  nature  and  properties 
of  pleadings  in  general,  without  reference  to  their  quality,  as 
being  by  way  of  traverse  or  confession  and  avoidance. 

(A)   Of  the  Nature  and  Properties  of  Traverses. 

Of  traverses,  there  are  various  kinds.  The  most  ordinary 
kind  is  that  which  may  be  called  a  common  traverse. 

The  Common  Traverse. 

The  common  traverse  consists  of  a  tender  of  issue;  that 
is,  of  a  denial,  accompanied  by  a  formal  offer  of  the  point 
denied  for  decision ;  and  the  denial  that  it  makes  is  by  way 
of  express  contradiction,  in  terms  of  the  allegation  traversed. 

^ "  When  the   matter   in  fact  will  leave    matters  in    law,   which  always 

clearly  serve  for  your  client,  although  arise  upon  the  matters  in  fact,  ad  ulti- 

your  opinion  is  that  the  plaintiff  hath  mu7n,  and  never  at  first  demur  in  law 

no  cause  of  action,  yet  take  heed  that  when,  after  trial  of  the  matters  in  fact, 

you  do  not  hazard  the  matter  upon  a  the  matters  in  law  will  be  saved  to  you." 

demurrer,  in  which,  upon  the  pleading  (Lord  Cromwell's  Case,  4  Co.  Rep.  14  a.) 
and  otherwise,  more  will  perhaps  arise         ^  1    Sel.    Pract.   497  ;     Cameron    i'. 

than  you  thought   of ;    but   first  take  Reynolds,  Cowp.  407. 
advantage  of  the  matters  of  fact,  and        *  2  Tidd,  1243,  8th  ed. 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OP   AN   ISSUE.      241 

These  are  generally  expressed  in  the  negative.  That,  how- 
ever, is  not  invariably  the  case  with  a  common  traverse  ;  for, 
if  opposed  to  a  precedent  negative  allegation,  it  will,  of 
course,  be  in  the  affirmative. 

The  General  Issues. 

Besides  this,  the  common  kind,  there  is  a  class  of  traverses 
which,  from  its  great  frequency  and  importance  in  practice, 
requires  particular  notice.  It  is  that  of  the  general  issues.  \ 
In  most  of  the  usual  actions  there  is  an  appropriate  plea,  ' 
fixed  by  ancient  usage,  as  the  proper  method  of  traversing 
the  declaration,  in  cases  where  the  defendant  means  to 
deny  the  whole  or  the  principal  part  of  its  allegations.^  This 
form  of  plea  or  traverse  is  called  the  general  issue  in  that 
action  ;  and  it  appears  to  be  so  called,  because  the  issue 
that  it  tenders,  involving  the  whole  declaration  or  the  prin- 
cipal part  of  it,  is  of  a  more  general  and  comprehensive  kind 
than  that  usually  tendered  by  a  common  traverse.  From  the 
examples  of  it  that  will  be  presently  given,  it  will  be  found 
that,  not  only  in  extent  or  comprehensiveness,  but  in  point  of 
form  also,  it  differs  somewhat  from  a  common  traverse  ;  for 
though,  like  that,  it  tenders  issue,  yet,  in  several  instances,  it 
does  not  contradict  in  terms  of  the  allegation  traversed,  but 
in  a  more  general  form  of  expression. 

In  debt  on  bond  or  other  specialty  the  general  issue  is  called 
the  plea  of  non  est  factum;  and  is  as  follows  :  — 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  &c.,  and  says  that  the  said  supposed 
writing  obligatory  (or  " indenttire,^'  or  "  articles  of  agreement,^'' 
according  to  the  subject  of  the  action)  is  not  his  deed ;  and  of 
this  he  puts  himself  upon  the  country. 

In  debt  on  simple  contract  the  general  issue  is  called  the 
plea  of  nil  debet ;  and  is  thus  :  — 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  &c.,  and  says  that  he  does  not  oive 
the  said   sum  of   money  above  demanded,  or  any  part  thereof, 

1  Reg.  Plac.  57  ;  Doct.  &  Stud.  272. 
16 


242 


COMMON-LAW   PLEADING. 


in  manner  and  form  as  the  said  A.  B.  hatli  above  complained; 
and  of  this  the  said  C  D.  puts  himself  upon  the  country.^ 

In  covenant  ^  the  general  issue  is  non  est  factum^  and  its 
form  is  similar  to  that  in  debt  on  specialty. 

In  detinue  the  general  issue  is  called  the  plea  of  non  deti- 
net ;  and  is  as  follows  :  — 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  &c.,  and  says  that  he  does  not  detain 
the  said  goods  and  chattels  (or  "deeds  and  writings,'^  according 
to  the  subject  of  the  action)  in  the  said  declaration  specified,  or 
any  part  thereof,  in  manner  and  form  as  the  said  A.  B.  hath 
above  complained ;  and  of  this  the  said  C.  D.  puts  himself  upon 
the  country. 

In  trespass  the  general  issue  is  called  the  plea  of  not  guilty ; 
and  is  as  follows  :  — 


1  Nil  debet  is  the  proper  form  of  the 
general  issue,  not  only  in  debt  on  simple 
contract,  but  in  all  other  actions  of  debt 
not  founded  on  a  deed  or  specialty.  And 
an  action  is  not  considered  as  founded 
on  a  deed  or  specialty,  so  as  to  require  a 
plea  of  non  est  factum,  if  the  deed  be 
mentioned  in  the  declaration  only  as 
introductory  to  some  other  main  cause 
of  action.  Therefore  nil  debet  is  a  good 
plea  in  debt  for  rent  upon  an  inden- 
ture, or  in  debt  for  an  escape,  or  in  debt 
upon  a  devastavit  (he  has  wasted).  (1 
Tidd,  701,  8th  ed.) 

2  "  According  to  respectable  authori- 
ties (Tidd,  593.  Lawes'  PI.  113.  1  Chit. 
PI.  482),  there  is,  to  a  declaration  in 
covenant  broken,  no  general  issue  :  Since 
the  plea  of  non  est  factum,  which  denies 
the  deed  only,  and  not  the  breach,  does 
not  put  the  ichole  declaration  in  issue. 
And  therefore,  it  is  said,  that  this  plea, 
when  used  in  this  particular  action,  is  to 
be  called  '  the  common  issue.'  It  must 
indeed  be  admitted,  that  there  is  a  differ- 
ence between  the  effect  of  the  plea  of 
non  est  factum,  in  covenant  broken,  and 
in  debt  on  specialty.  A  valid  bond,  or 
single  bill,  necessarily  creates  a  present 
debt ;  and  the  plea  in  question,  by  deny- 
ing the  deed,  necessarily  and  directly 
denies  the  alleged   debt :    Whereas  a 


covenant  does  not  necessarily  create,  in 
the  covenantee,  a  right  to  damages  ; 
because  a  breach  may  never  occur. 
And  though,  if  there  be  no  covenant, 
there  can  be  no  breach ;  yet  a  denial  of 
the  covenant  denies  the  breach,  only  by 
consequence,  and  not  directly.  As,  how- 
ever, non  est  factum  is  confessedly  ?igood 
plea,  in  covenant  broken,  and  also  the 
most  general  form  of  denial,  of  which 
the  action  admits,  there  appears  to  be 
little  use  in  distinguishing  it,  by  the 
anomalous  appellation  of  a  'common 
issue.'  Indeed,  the  only  peculiarity 
which  distinguishes  it  in  this  action, 
from  other  general  issues,  —  viz.,  that 
it  does  not  put  the  whole  declaration 
directly  in  issue,  —  would  seem  rather 
to  bring  it  within  the  description  of  a 
special  issue.  At  any  rate,  if  it  is  neces- 
sary or  proper  to  give  this  plea,  in  the 
action  of  covenant  broken,  the  peculiar 
denomination  of  a  common  issue,  it  would 
seem  equally  so,  to  distinguish  the  same 
plea  by  the  same  name,  when  pleaded 
to  a  special  declaration,  in  debt  on  a 
penal  bond.  For  the  same  reason,  which 
authorizes  its  peculiar  designation  in 
the  former  action,  exists,  to  the  same 
extent,  in  the  latter."  Gould's  PI.  284, 
n.  2. 


RULES   WHICH    TEND    TO   THE   PRODUCTION   OF   AN  ISSUE.      243 

And  the  said  C.  D.,  by ,  liis  attorney,  comes  and  defends 

the  force  and  injury,  when,  &c.,  and  says  that  he  is  not  guilty 
of  the  said  trespasses  above  laid  to  his  charge,  or  any  part 
thereof,  in  manner  and  form  as  the  said  A.  B.  hath  above 
complained;  and  of  this  the  said  C.  D.  puts  himself  upon  the 
country. 

In  trespass  on  the  case  (in  the  species  of  assumpsit)  the 
general  issue  is  called  the  plea  of  non-assumpsit ;  and  is  as 
follows  :  — 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  &c.,  and  says  that  he  did  not  %mder- 
take  or  promise,  in  manner  and  form  as  the  said  A.  B.  hath  above 
complained :  and  of  this  the  said  C.  D.  puts  himself  upon  the 
country. 

In  trespass  on  the  case,  in  general,  the  general  issue  is  not 
guilty  ;  and  is  thus  :  — 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  &c.,  and  says  that  he  is  not  guilty  of 
the  premises  above  laid  to  his  charge,  in  manner  and  form  as  the 
said  A.  B.  hath  above  complained  ;  and  of  this  the  said  C  D.  puts 
himself  upon  the  country. 

In  replevin  the  general  issue  is  called  the  plea  of  non  cepit ; 
and  is  as  follows  :  — 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  &c.,  and  says  that  he  did  not  take 
the  said  cattle  (or  "  goods  and  chattels,''  according  to  the  subject 
of  the  action)  in  the  said  declaration  mentioned,  or  any  of  them, 
in  manner  and  form  as  the  said  A.  B.  hath  above  complained ; 
and  of  this  the  said  C.  D.  puts  himself  upon  the  country. 

A  very  important  effect  attends  the  adoption  of  the  general 
issue,  viz.,  that  by  tendering  the  issue  on  the  declaration,  and 
thus  closing  the  process  of  the  pleading  at  so  early  a  stage,  it 
throws  out  of  use,  wherever  it  occurs,  a  great  many  rules  of 
pleading,  applying  exclusively  to  the  remoter  allegations. 
For  it  is  evident  that,  when  the  issue  is  thus  tendered  in  the 
plea,  the  whole  doctrine  relating  to  pleadings  in  confession 
and   avoidance,   replications,  rejoinders,  etc.,  is  superseded. 


244  COMMON-LAW   PLEADING. 

At  the  same  time,  the  general  issue  is  of  very  frequent  occur- 
rence in  pleading ;  and  it  has,  therefore,  on  the  whole,  the 
effect  of  narrowing,  very  considerably,  the  application  of 
the  greater  and  more  subtle  part  of  the  science. 

The  important  character  of  this  plea  makes  it  material  to 
explain  distinctly  in  what  cases  it  may  and  ought  to  be  used  ; 
and  this  is  the  more  necessary,  because  an  allowed  relaxation 
in  the  modern  practice  has,  in  some  actions,  given  it  an 
application  more  extensive  than  belongs  to  it  in  principle. 
To  obtain  a  clear  view  of  this  subject,  we  must  examine  the 
language  of  the  different  general  issues,  in  reference  to 
the  declarations  which  they  respectively  traverse. 

In  debt  on  specialty  and  in  covenant,  the  general  issue,  non 
est  factum,  denies  that  the  deed  mentioned  in  the  declaration 
is  the  deed  of  the  defendant.  Under  this,  the  defendant  at 
the  trial  may  contend,  either  that  he  never  executed  such 
deed  as  alleged,  or  that  it  is  absolutely  void  in  law. 

Examples  :  He  may  so  contend  on  the  ground  that  the  alleged 
obligor  or  covenantor  was,  at  the  time  of  execution,  a  married 
woman  or  a  lunatic ;  ^  or  that  since  its  execution,  and  before  the 
commencement  of  the  suit,  it  has  been  erased  or  altered  by  the 
obligee  or  covenantee  himself,  or  (if  in  a  material  point)  by  a 
stranger.^ 

But  if  the  defendant's  case  consist  of  anything  but  a  denial 
of  the  execution  of  such  deed  as  alleged,  or  some  fact  showing 
its  absolute  invalidity,  the  plea  of  wow  est  factum  will  be  im- 
proper.3    And  it  is  to  be  observed  that,  in  point  of  pleading, 

1  Com.  Dig.  Pleader,  2  W.  18;  Yates  tenor  of  the  deed  itself,  the  plea  of  non 
r.  Boen,  2  Str.  1104 ;  Collins  v.  Blantern,  est  factum  will  of  course  be  as  applicable 
2  Wils.  347.  as  where  no  deed  has  been  executed  by 

2  Henry  Pigot's  Case,  II  Co.  Pep.  the  defendant;  for  in  either  case  the 
26  b.  But,  according  to  modern  deed,  as  alleged,  is  not  his.  So,  if  the 
authority,  an  alteration,  although  instrument  was  delivered  as  an  escrow. 
material,  can  not  invalidate  a  written  this  is  evidence  under  non  est  factum  (I 
instrument,  when  made  by  a  stranger  Tidd,  701,  8th  ed.),  because  it  shows 
to  the  contract.  See  Parsons  on  Con-  the  invalidity  of  the  instrument  as  a 
tracts  (7th  ed.),  II.  716*,  n.  1,  where  deed.  But  it  seems  that  its  delivery  as 
the  authorities  are  collected  and  dis-  an  escrow  may  be  also  specially  pleaded, 
cussed.  (Murray  v.  Earl  of  Stair,  2  Barn.  & 

2  If  the  statement  of  the  deed  in  the    Cress.  82.) 
declaration  materially  varies  from  the 


flULES   WHICH   TEND   TO   THE   PRODUCTION   OF   AN   ISSUE.      245 

a  deed  is  on  some  grounds  absolutely  void  in  law,  on  others 
voidable  only.  Thus,  though  it  is  void  for  the  lunacy  of  the 
party  who  executes,  his  infancy  makes  it  only  voidable.^  And 
its  execution  under  duress  is  also  an  objection  of  the  latter 
kind.2  Now,  the  rule  is,  that  while  matters  which  make  a 
deed  absolutely  void  may  be  given  in  evidence  under  no7i  est 
factum^  those  which  make  it  voidable  only  must  be  specially 
pleaded.^  And  it  seems  that,  generally,  objections  to  the 
legality  of  the  consideration  on  which  a  deed  was  founded  are 
referable  to  the  latter  class ;  for  it  has  been  decided,  that 
where  the  condition  of  a  bond  is  in  restraint  of  matrimony, 
that  ground  of  defence  is  not  evidence  under  non  est  factum  ;  * 
and  that  where  a  bond  is  given  to  compound  a  felony,  that  is 
matter  which  must  be  specially  pleaded.^  And  it  is  a  general 
rule  that  any  illegality  arising  from  the  prohibition  of  an  act 
of  Parliament^  as  in  the  case  of  usury,  or  gaming,  is  matter  for 
special  plea,  and  is  not  evidence  under  non  est  factum ;  ^  a 
rule  apparently  founded  on  the  same  principle  ;  for  its  reason 
seems  to  be,  that  the  statute  is  always  so  construed  as  to 
make  the  instrument  not  absolutely  void,  but  voidable  by 
special  pleaj 

If  the  general  issue  in  debt  on  simple  contract  be  now 
examined,  its  effect  and  application  will  be  found  to  be  much 
more  extensive.  The  declaration  alleges  that  the  defendant 
was  indebted  to  the  plaintiff  on  some  consideration,  e.  g.,  for 
goods  sold  and  delivered.  The  general  issue  alleges  "  that  he 
does  not  owe  the  sum  of  money,"  etc.  Were  the  allegation 
merely  that  "the  goods  were  not  sold  and  delivered,"  it  would 
of  course  be  applicable  to  no  case  but  that  where  the  defend- 
ant means  to  deny  the  sale  and  delivery  ;  but,  as  the  allegation 

1  Whelpda]e'sCase,5Co.Rep.  119  a;  6  Harmer  y.  Rowe,  2  Chit.  Rep.  334; 
2  Inst.  483  ;  Darby  v.  Boucher.  1  Salk.  s.  c.  2  Stark.  36 ;  and  see  Collins  v. 
279;   Zouch  v.  Parsons,  3  Burr.  1805;     Blantern,  2  Wils.  347. 

Gibbsj;.  MerreU,3Taunt.  307;  Baylisr.  6  "vvrhelpdale's     Case,     uhi     supra. 

Dinely,  3  M.  &  S.  477 ;  Keane  v.  Boycott,  With  respect  to  usury,  it  is  said  that, 

2  H.  Bl.  515.  even  if  the  condition  of  a  bond,  as  set 

2  2  Inst.  482,  Com.  Dig.  Pleader,  2  forth  in  the  pleadings,  appears  on  tlie 
W.  19.  face  of  it  to   be  usurious,  yet  the  d^- 

8  Com.  Dig.  Pleader,  2  W.  18.  fendant  cannot  demur,  but  must  plead 

*  Colton  V.  Goodridge,  2  Bl.   Rep.    the  usury.     (1  Saund.  295  a,  n.  1.) 
1108.  ''  See  Whelpdale's  Case,  ubi  supra. 


246  COMMON-LAW   PLEADING. 

is  that  he  does  not  owe,  it  is  evident  that  the  plea  is  adapted  tp 
any  kind  of  defence  that  tends  to  deny  an  existing  debt ;  and, 
therefore,  not  only  to  a  defence  consisting  in  a  denial  of  the 
sale  and  delivery,  but  to  those  of  release,  satisfaction,  arhitra- 
me7it}  and  a  multitude  of  others,  to  which  a  general  issue  of 
a  narrower  kind  (for  example,  that  of  7ion  est  factum)  would, 
in  its  appropriate  actions,  be  inapplicable.  In  short,  there  is 
hardly  any  matter  of  defence  to  an  action  of  debt  to  which 
the  plea  of  nil  debet  may  not  be  applied,  because  almost  all 
defences  resolve  themselves  into  a  denial  of  the  debt? 

In  detinue,  the  declaration  states  that  the  defendant  detains 
certain  goods  of  the  plaintiff ;  the  general  issue  alleges  that 
he  "  does  not  detain  the  said  goods  in  the  said  declaration 
specified,"  etc.  This  will  apply  either  to  a  case  where  the 
defendant  means  to  deny  that  he  detains  the  goods  mentioned, 
or  to  a  case  where  he  means  to  deny  that  the  goods  so  de- 
tained are  the  property  of  the  plaintiff ;.ior,  if  they  are  not 
the  plaintiff's  property,  then  it  is  true  that  the  defendant  does 
not  detain  the  goods  specified  in  the  declaration  ;  the  only 
goods  there  specified  being  described  as  the  goods  of  the 
plaintiff.^ 

In  trespass,  the  general  issue,  not  guilty,  evidently  amounts 
to  a  denial  of  the  trespasses  alleged,  and  no  more.  Therefore, 
if  in  trespass  for  assault  and  battery  the  case  be,  that  the 
defendant  has  not  assaulted  or  beat  the  plaintiff,  it  will  be  proper 
that  he  should  plead  the  general  issue  ;  but  if  his  case  be  of 
any  other  description,  the  plea  will  be  inapplicable.  So,  in 
trespass  quare  clausum  f regit,  or  for  taking  the  plaintiff's 
goods,  if  the  defendant  did  not,  in  fact,  break  and  enter  the 

^  Anon.  5   Mod.    18 ;    Paramore   v.  tender,  nor  (without  notice)    a  set-off; 

Johnson,  1  Ld.  Raym.  566  ;  s.  c.  12  Mod.  nor  (in  an  action  for  rent  on  indenture) 

376.  that  the  plaintiff  had  nothing  in  the  tene- 

2  It  was  even  holden,  per  Holt,  C.  J.,  vients  ;  nor  (in  debt,  qui  tain)  a  former 

that  as  the  plea  is  in  the  present  tense,  recover ij  against  him  for  the  same  cause 

the  defendant    may   give    in  evidence  by  another  person.   (1  Tidd,  700,  Sthed.) 

the  statute  of  limitations.      (Draper  v.  ^  Therefore  he  may  give  in  evidence, 

Glassop",  1  Ld.  Raym.  153 ;  Lee  v.  Clarke,  under  non  detinet,  a  gift  from  the  plaio- 

2  East,  3.36.  Per  Lawrence,  J.  Qu.tamen  tiff;  for  that  proves  that  he  does  not 

(questioning).     See  1  Saund.  283,  n.  2,  2  detain  the    plaintiff's    goods  ;    but   he 

Saund.  62  c,  n.  6.)    But  under  this  plea,  can  not  give  in  evidence  that  they  were 

defendant  cannot    give  in    evidence  a  pawned  to  him.     (Co.  Litt.  283.) 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OP  AN   ISSUE.      247 

close  ill  question  or  take  the  goods,  the  general  issue,  "  not 
guilty,"  will  be  proper.  It  will  also  be  applicable  if  he  did 
break  and  enter  the  close,  but  it  was  not  in  the  possession  of 
the  plaintiff,  or  not  lawfully  in  his  possession,  as  against  the 
letter  title  of  the  defendant}  So  it  will  be  applicable  if  he  did 
take  the  goods,  but  they  did  not  belong  to  the  plaintiff;  for,  as 
the  declaration  alleges  the  trespass  to  have  been  committed 
on  the  close  or  goods  of  the  2)laintiff^,  the  plea  of  not  guilty  in- 
volves a  denial  that  the  defendant  broke  and  entered  the  close 
or  took  the  goods  of  the  plaintiff ;  and  is,  therefore,  a  fit  plea, 
if  the  defendant  means  to  contend  that  the  plaintiff  had  no 
possession  of  the  close,  or  property  in  the  goods,  sufficient  to 
entitle  him  to  call  them  his  own.  But  if  the  defence  be  of 
any  other  kind,  the  general  issue  will  not  apply. 

So  far,  all  is  consistent  with  the  form  and  principle  of  these 
several  pleas  ;  but,  with  respect  to  the  two  general  issues  that 
next  follow,  the  case  is  somewhat  different. 

First,  with  respect  to  that  in  assumpsit.  The  declaration 
in  this  action  states  that  the  defendant,  upon  a  certain  con- 
sideration therein  set  forth,  made  a  certain  promise  to  the 
plaintiff.  The  general  issue,  in  this  action,  states  that  the 
defendant  "  did  not  promise  and  undertake  in  manner  and 
form,"  etc.  This,  at  first  sight,  would  appear  to  put  in  issue 
merely  the  fact  of  his  having  made  a  promise  such  as  is  alleged. 
A  much  wider  effect,  however,  belongs  in  practice  to  this  plea, 
and  was  originally  allowed  (as  it  would  appear),  with  reference 
to  the  following  distinction.  It  has  been  already  stated  that 
the  law  will  always  imjjly  a  promise,  in  consideration  of  an 
existing  debt  or  liability  ;  and  that  the  action  of  assumpsit 
may  be  consequently  founded  on  a  promise  either  express  or 
imp)lied.  When  the  promise  relied  upon  was  of  the  latter  kiiid, 
and  the  defendant  pleaded  the  general  issue,  the  plaintiff's 
mode  of  maintaining  the  affirmative  of  this  issue,  on  the  trial, 
was,  of  course,  by  proving  that  debt  or  liability  on  which  the 
implied  promise  would  arise  ;  and  in  such  case  it  was  evidently 
reasonable  that  the  defendant  also  sliould,  under  his  plea 
denying  the  promise,  be  at  liberty  to  show  any  circumstance 

1  Dodd  V.  Kyffin,  7  T.  R.  254. 


248  COMMON-LAW  PLEADING. 

by  which  the  debt  or  liability  was  disproved  ;  such,  for  example, 
as  performance  or  a  release.  Accordingly,  in  actions  on  implied 
assumpsits,  this  effect  was,  on  the  principle  here  mentioned, 
allowed  to  the  general  issue.  But  it  was  at  first  allowed  in 
the  case  of  implied  assumpsits  only ;  and,  where  an  express 
promise  was  proved,  the  defendant,  in  conformity  with  the 
language  and  strict  principle  of  his  plea,  was  permitted,  under 
the  general  issue,  only  to  contest  the  fact  of  the  promise,  or 
at  most  to  show  that,  on  the  ground  of  some  illegality,  it  was 
a  promise  void  in  law.^  This  practice,  however,  was  by  relaxa- 
tion gradually  applied  to  actions  on  express  promises  also  ;  and 
at  length,  in  all  actions  of  assumpsit  without  distinction,  the 
defendant  was,  under  the  general  issue,  permitted  not  only  to 
contend  that  no  promise  was  made,  or  to  show  facts  impeaching 
the  validity  of  the  promise,  but  (with  some  few  exceptions)  ^ 
to  prove  any  matter  of  defence  whatever  which  tends  to  deny 
his  debt  or  liability  ;  for  example,  a  release  or  performance. 

This  is  a  great  deviation  from  principle  ;  for  it  is  to  be 
observed  that  many  of  these  matters  of  defence  are  such  (in  the 
case  of  express  promise)  as  ought  regularly  to  be  pleaded  in 
confession  a7id  avoidance.  Thus,  if  the  defendant  be  charged 
with  an  express  promise,  and  his  case  be,  that,  after  mailing 
such  promise,  it  was  released  or  performed,  this  plainly  con- 
fesses and  avoids  the  declaration.  To  allow  the  defendant, 
therefore,  to  give  this  in  evidence  under  the  general  issue, 
which  is  a  plea  by  way  of  traverse,  is  to  lose  sight  of  the  dis- 
tinction between  the  two  kinds  of  pleading.  And  even  where 
the  matters  of  defence  thus  admitted  in  evidence  are  not  such 
as  would  have  been  pleadable  by  way  of  confession  and  avoid- 
ance, but  are  in  the  nature  of  a  traverse  of  the  declaration, 
yet  they  are  almost  always  inconsistent  with  the  form  and 
language  of  the  general  issue  in  this  action ;  which  (as  has 
been  seen)  consists  of  a  denial  of  the  promise  only,  and  pur- 

1  Fits  V.  Freestone,  1  Mod.  310;  vent  act,  nor  (in  some  cases)  a  defence 
Abbot  V.  -Chapman,  2  Lev.  81  ;  Vin.  under  the  court  of  conscience  acts.  Nor 
Ab.  Evidence,  Z,  a.  is  a  set-off  evidence  under  non-assumpsit, 

2  He  can  not  give  in  evidence  a  ten-  unless  notice  of  set-off  be  given  with  the 
der,  hankruptct/  of  defendant,  the  statute  plea.  (Chit.  PI.  420;  1  Tidd,  700,  8th 
of  limitations,  a  discharge  under  the  insol-  ed.) 


EULES   WHICH   TEND   TO    THE   PRODUCTION   OF   AN   ISSUE.      249 

ports  to  traverse  no  other  part  of  the  declaration.  Thus,  in 
an  action  which  has  become,  of  all  others,  the  most  frequent 
and  general*  in  its  application,  the  science  of  pleading  has 
been,  in  a  great  measure,  superseded  by  an  innovation  of 
practice,  which  enables  the  parties  to  come  to  issue  upon  the 
plea  (the  second  step  in  the  series  of  allegations)  in  a  great 
variety  of  cases,  which  would  formerly  have  led  to  much 
remoter  or  more  specific  issues.  This  important  inroad  on  the 
ancient  dominion  of  pleading  has  been  effected  for  more  than 
a  century  past,^  and  was  probably  first  encouraged  by  the 
judges  in  consequence  of  a  prevalent  opinion  that  the  rules 
of  this  science  were  somewhat  more  strict  and  subtle  than  is 
consistent  with  the  objects  of  justice ;  and  that,  as  the  general 
issue  tended  to  abbreviate  its  process,  and  proportionably  to 
emancipate  the  suitors  from  its  restrictions,  it  was  desirable 
to  extend,  as  much  as  possible,  the  use  and  application  of  that 
plea. 

Next  in  order  is  the  general  issue  which  belongs  to  the 
action  of  trespass  on  the  case  in  general.  The  declaration  in 
this  action  sets  forth  specifically  the  circumstances  which  form 
the  subject  of  complaint.  The  general  issue,  not  guilty^  is  a 
mere  traverse  or  denial  of  the  facts  so  alleged  ;  and,  therefore, 
on  principle,  should  be  applied  only  to  cases  in  which  the  de- 
fence rests  on  such  denial.  But  here  a  relaxation  has  taken 
place  similar  to  that  which  prevails  in  assumpsit ,  for,  under 
the  plea  now  in  question,  a  defendant  is  permitted  not  only  to 
contest  the  truth  of  the  declaration,  but,  with  certain  excep- 
tions,^ to  prove  any  matter  of  defence  that  tends  to  show  that 
the  plaintiff  has  no  right  of  action,  though  such  matters  be  in 
confession  and  avoidance  of  the  declaration  ;  as,  for  example, 
a  release  given  or  satisfaction  made.  This  latitude  was,  no 
doubt,  originally  allowed  for  the  same  reasons  that  prompted 

*  See  Paramore  v.  Johnson,  12  Mod.  truth  of  the  charges,  hut  must  plead  it 

377,  where  Holt,  C.  J.,  says  :  "  It  is  in-  specially;  nor  retaking  on  fresh  jiursuit, 

dulgence  to  give  accord  with  satisfaction  in   an   action   for  escape  ;    nor  in  any 

in'  evidence  upon  non-assumpsit  pleaded,  action  on  the  case,  the  statute  of  limita- 

but  that  has  crept  in,  and  now  is  settled."  tions.      (1    Tidd,    702,    8th   ed. ;    Chit. 

2  In  an  action  of   libel  or  words  of  PI.  436.) 
slander  he  cannot  give  in  evidence  the 


250  COMMON-LAW  PLEADING. 

the  encouragement  of  the  general  issue  in  assumpsit.  It  is  not, 
however,  easy  to  conceive  by  what  artifice  of  reasoning  the 
relaxation  was,  in  this  case,  held  to  be  reconcilable  with 
the  principles  of  pleading,  to  which  it  stands  in  apparent 
variance  ;  and  perhaps  the  truth  is,  that  the  practice  in  ques- 
tion was  first  applied  to  the  general  issue  in  trespass  on  the 
case  in  general,  without  regard  to  any  principle  beyond  that  of 
a  forced  analogy  to  the  similar  practice  in  trespass  on  the  case 
in  assumpsit} 

Thus,  in  assumpsit  and  trespass  on  the  case  in  general,  the 
defendant  is  allowed,  under  the  general  issue,  to  give  in  evi- 
dence matters  which  do  not  fall  within  the  strict  principles  of 
that  plea ;  and,  among  these,  matters  in  confession  and  avoid- 
ance. It  is  to  be  observed,  however,  with  respect  to  matters 
of  this  latter  description,  that,  though  allowed,  he  is  in  no  case 
obliged  to  take  that  course,  but  may  still  bring  forward,  by  way 
of  special  plea  in  confession  and  avoidance,  all  such  allegations 
as  properly  fall  within  the  principle  of  such  pleadings  ;  that 
is,  all  which  confess  what  is  adversely  alleged,  but  repel  or 
obviate  its  legal  effect.  Thus  the  defendant  may,  in  assumpsit 
and  other  actions  of  trespass  on  the  case,  plead  a  release, 
though  it  is  also  competent  to  him  to  rely  upon  it  in  evidence 
under  the  general  issue.^  As  this  course  is  allowable,  so  there 
are  reasons  of  convenience  which  sometimes  dictate  its  adop- 
tion;^ but  the  general  issue,  where  capable  of  being  applied, 
is  much  the  more  usual  form  of  plea,  and  that  which,  from 
its  generality,  is  commonly  the  most  advantageous  to  the 
defendant. 

1  See,  however,  Lord  Mansfield's  ex-  duress,  usuri/,  gaming,  or  the  statute  of 

planation  of  the  reason  for  allomng  this  frauds.   All  these,  however,  are  e^adence 

practice  in  trespass  on  the  case.     (Bird  under  the  general  issue. 

V.  Randall,  3  Burr.  1353.)  3  The  chief   advantage  of  pleading 

^  Upon  this  principle  the  defendant  specially  is,  that  it  obliges  the  plaintiff 

may  plead  specially,  not  only  a  release,  to  repUi ;  in  doing  which,  he  is  confined 

performance,  payment,  accord  and  satis-  (as  will  be  shown  hereafter)  to  a  single 

/action,. or  other  matter  in  (f/sc/iarge,  but  answer.     This  often  puts  him  to  great 

any  matter  also  which  tends  to  show  the  disadvantage,  for  he  may  have  several 

contract  void  or  voidable  in  point  of  law,  answers  to  the  defendant's  case ;   and, 

while  it  admits  it  to  have  been  made  in  if  the  general   issue   be   pleaded,  may 

fact,  such  as  iifancy,  lunacy,  coverture,  avail   himself  of  all. 


BULES  WHICH   TEND   TO   THE   PRODUCTION   OF   AN   ISSUE.      251 

Lastly,  the  general  issue,  non  cepit,  in  replevin,  applies  to 
the  case  where  the  defendant  has  not  in  fact  taken  the  cattle 
or  goods,  or  where  he  did  not  take  them,  or  have  them,  in  the 
place  mentioned  in  the  declaration.^  For  the  declaration 
alleges  that  the  defendant  "  took  certain  cattle  or  goods  of 
the  plaintiff,  in  a  certain  place  called,"  etc.,  and  the  general 
issue  states  that  he  did  not  take  the  said  cattle  or  goods  "  in 
manner  and  form  as  alleged ; "  which  involves  a  denial  both 
of  the  taking  and  of  the  place  in  which  the  taking  was  alleged 
to  have  been  ;  the  place  being  a  material  point  in  this  action. 

On  the  subject  of  general  issues,  it  remains  only  to  remark, 
that  other  pleas  are  ordinarily  distinguished  from  them  by 
the  appellation  of  special  pleas  ;  and,  when  resort  is  had  to  the 
latter  kind,  the  party  is  said  to  plead  specially,  in  opposition 
to  pleading  the  general  issue.^  So  the  issues  produced  upon 
special  pleas,  as  being  usually  more  specific  and  particular 
than  those  of  not  guilty,  nil  debet,  etc.,  are  sometimes  described 
in  the  books  as  special  issues,  by  way  of  distinction  from  the 
others,  which  were  called  general  issues,^  the  latter  term  having 
been  afterwards  applied  not  only  to  the  issues  themselves,  but 

to  the  pleas  which  tendered  and  produced  them.*  . 

■  r  ■ 

The  Traverse  de  Injuria. 

There  is  another  species  of  traverse,  which  varies  from  the 
common  form,  and  which,  though  confined  to  particular  actions, 
and  to  a  particular  stage  of  the  pleading,  is  of  frequent  occur- 
rence. It  is  the  traverse  de  injuria  sua  propria,  absque  tali 
causa  (of  his  own  wrong  without  such  excuse),  or  (as  it  is 
briefly  called")  the  traverse  de  injuria.  It  always  tenders 
issue  ;  but,  on  the  other  hand,  differs,  like  many  of  the  gen- 

1  Chit.  PI.  436.  *  By  the  Kules  of  Court  of  Hilary 

2  These  terms,  it  may  be  remarked,  Term,  1834,  3  and  4  Wm.  IV,  the  gen- 
have  given  rise  to  the  popular  denomi-  eral  issues  were  materially  restricted, 
nation  of  the  whole  science  to  which  The  student  is  referred  to  the  Ueport  of 
this  work  relates,  which,  though  prop-  the  Common  Law  Commissioners,  and 
erly  described  as  that  of  pkadinq,  is  to  those  rules  which  he  will  find  in  full 
generally  known  by  the  name  of  special  in  5  Barn.  &  Adolph.  i.-xx.  As  these 
pleadinq.  rules  were  never  in  force  in  this  country, 

8  Co.  Eitt.  126a;  Heath's  Maxims,  they  are  only  of  scientific  interest  to  the 
53 ;  Com.  Dig.  Pleader,  K.  2.  American  student. 


252  COMMON-LAW  PLEADING. 

cral  issues,  from  the  common  form  of  a  traverse,  by  denying 
ill  general__and  sumniary4©i:jms,  and  not  in  the  words  of  the 
alleyation  traversed. 

This  species  of  traverse  occurs  in  the  replication^  in  actions  of 
trespass,^  trespass  on  the  case,^  replevin,^  assumpsit,^  debt^^  and 
covenant,^  but  is  not  used  at  any  other  stage  of  the  pleading, 
111  these  actions  it  ia  thp  pr^pp.r  foriP,  wbp.n  the,  plpa.  o.onsist^ 
merely  of  matter  of  excuse.  But  when  it  consists  of  or  com- 
prises matter  of  title  or  interest  in  laud,  etc.,  or  the  coiiunand- 
ment  of  another,  or  authority  of  lato,  or  authority  in  fact, 
derived  from  the  opposite  party,  or  matter  of  record,  —  in  any 
of  these  cases,  the  replication  de  injuria  is  generally  improper,' 
and  the  traverse  of  any  of  these  matters  should  be  in  the 
common  form  ;  that  is,  in  the  words  of  the  allegation  traversed. 

As  the  general  issue  allowed  the  defendant  to  deny  by  a 
brief  formula  the  material  averments  of  the  plaintiff's  decla- 
ration, so  this  species  of  traverse,  which  occurs  only  as  a 
replication,  gave  the  plaintiff  a  similar  privilege  in  certain 
cases  with  respect  to  the  defendant's  plea.  These  cases  are 
when,  in  any  of  the  above-named  actions,  the  defendant 
undertakes  in  his  plea  to  excuse  by  a  plea  of  confession  and 
avoidance  the  act  alleged  against  him  in  the  declaration. 
An  illustration  will  make  this  plain : 

Example :  A.  sues  B.  in  trespass  vi  et  armis  for  an  assault  and 
battery.  B.  pleads  what  is  technically  called  a  plea  of  so7i  assault 
demesne  (his  own  assault)  ;  by  this  plea  he  confesses  that  he  did 
assault  as  charged  in  the  declaration ;  but  he  excuses  his  appar- 
ently wrongful  act  by  averring  that  A.  has  not  told  the  whole 
truth  in  his  declaration,  for,  as  B.  now  alleges,  A.  made  the  first 
assault  upon  him,  and  he  only  molliter  manus  imposuit  (gently 
bands  laid)  upon  A.  to  defend  himself  from  A.'s  assault  prozit 
bene  ei  limit  (as  well  he  might),  using  no  more  force  than  was 
necessary  to  repel  A.'s  assault. 

1  Crogate's  Case,  8  Co.  Rep.  67  a.  ^  Washbourne  v.  Barrows,  1  Ex.  107. 

2  O'Brien  v.  Saxon,  2  Barn.  &  Cress.  "<  Crogate's  Case,  tihi  supra  ;  Doct. 
908.  PI.  113,  115.     See  the  law  on  this  sub- 

8  Selby    V.    Bardons,    3    Barn.  &    ject  more  fully  explained,  and  the  ex- 

Adolph.  2.  ceptions  noticed.   Chit.  PI.  512-518;  1 

4  li^aac  V.  Tarrer,  1  M.  &  W.  65.  Arch.  238  ;  2  Saund.  295,  n.  1 ;  1  Saund. 

B  Cowper  V.  Garbett,  13  ibid.  33.  544  c,  n.  7. 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OP   AN   ISSUE.      253 

Now,  the  student  will  observe  that  by  this  plea  B.  has 
offered  an  excuse  which  is  made  up  of  several  elements,  to 
wit :  the  prior  assault  by  A.  upon  him,  and  his  battery  of  A.  in 
self-defence.  Instead  of  being  compelled  to  traverse  specif- 
ically the  material  allegations  of  this  plea,  A.  is  permitted  to 
reply  generally  that  B.  assaulted  him  as  charged  in  the  decla- 
ration of  his  (-S.'s)  own  wrong  and  without  the  excuse  set  out  in 
the  plea. 

Let  us  take  another  more  complicated  illustration  :  — 

Example:  The  plaintiff  sued  the  defendant  for  maliciously, 
and  without  any  reasonable  or  probable  cause,  suing  out  a  com- 
mission of  bankruptcy  against  him,  the  plaintiff.  The  defendant 
pleaded  confessing  the  suing  out  of  the  commission  of  bankruptcy, 
but  excusing  his  act  by  averring  that  the  plaintiff  was  a  trader, 
and  as  such  became  indebted  to  him  and  then  became  a  bankrupt, 
wherefore  he  (defendant)  sued  out  the  said  commission.  To  this 
the  plaintiff  replied  that  the  defendant  of  his  ow?i  ivroriff  and 
without  the  excuses  in  his  plea  alleged  committed  the  grievance 
charged  in  the  declaration.^ 

Here  the  student  will  notice  that  the  defendant's  plea  con- 
tains three  several  material  averments,  to  wit :  the  plaintiff's 
trading,  his  bankruptcy,  and  the  petitioning  creditor's  debt. 
Yet  by  this  form  of  replication  the  plaintiff  is  permitted  to 
put  them  all  in  issue. 

This  privilege  of  the  plaintiff  is  however  restrained  within 
reasonable  bounds.  It  may  be  that  the  defendant's  plea 
contains  matter  which  can  not  properly  be  put  in  issue  in  this 
general  way.  The  defendant,  sued  for  an  assault,  may  plead 
that  he  was  an  officer  of  the  law  charged  with  the  execution 
of  a  warrant  for  the  arrest  of  the  plaintiff,  and  that  he  com- 
mitted the  assault  in  question  only  to  enforce  his  arrest  over 
the  plaintiff's  resistance  thereto.  To  permit  the  replication 
de  injuria  sua  propria  absque  tali  causa  in  this  case,  would  be 
to  send  to  the  jury  for  trial  a  question  of  record  (the  warrant) 
combined  with  a  question  of  fact  (the  resistance  of  the  plain- 
tiff to  the  arrest),  and  this  the  law  will  not  do. 

Again,  questions  of  title  to  or  interest  in  land  were  con- 

1  O'Brien  v.  Saxon,  2  Bam.  &  Cress  908.  See  also  Kobinson  v.  Rayley,  1 
Burr.  316. 


254  COMMON-LAW   PLEADING. 

sidercd  too  important  to  be  tried  in  this  general  way,  and  a 
specific  traverse  was  required  to  put  them  in  issue. ^  So  if 
the  defendant  claimed  authority  for  the  act  alleged  from  the 
plaintiff,  he  was  entitled  to  know  by  a  specific  traverse 
whether  the  plaintiff  denied  that  authority .^ 

In  these  cases  another  form  of  this  replication  was,  how- 
ever, open  to  the  plaintiff,  and  this  was  called  de  injuria  sua 
jjropria  absque  residuo  causae  (of  his  own  wrong  without  the 
remainder  of  the  excuse). 

Example :  The  plaintiff  sues  the  defendant  for  assault  and 
battery.  The  defendant  confesses  that  he  did  commit  the  alleged 
assault,  but  only  under  the  following  circumstances :  On  the  day 
in  question  he  was  an  officer  of  the  law,  and  as  such  was  charged 
to  arrest  the  plaintiff  upon  the  warrant  of  a  competent  court ; 
he  attempted  to  arrest  the  plaintiff  upon  this  warrant,  when  the 
plaintiff  assaulted  him,  and  he  was  compelled  to  beat  the  plaintiff 
to  enforce  his  arrest. 

Now  it  may  be  that,  in  the  case  supposed,  the^jieiendant 
really  was  acting  under  a  warrant,  and  yet  did  assault  and  beat 
the  plaintiff  without  justification.  In  such  case  the  plaintiff 
would  usually  protest  ^  tlie  warrant,  and  reply  de  injuria 
.  .  .  absque  residuo  causoi  as  to  the  remainder  of  the  plea, 
thus  putting  in  issue  the  defendant's  averment  that  he  was 
compelled  to  beat  the  plaintiff  to  enforce  his  arrest. 

Thus  in  each  case  the  plaintiff  can  waive  or  admit  the  for- 
bidden subject,  and  reply  de  injuria  .  .  .  absque  residuo 
causae  as  to  the  remainder  of  the  excuse.^  In  any  case  he  can 
contest  the  question  of  authority^  title^  etc.,  but  not  under  this 
replication  ;  it  must  be  hy  an  appropriate  traverse. 

This  replication  de  injuria  in  any  form  could  not  be  used 
where  the  plea  was  the  general  issue,  a  specific  traverse,/or  a 
plea  by  way  of  confession  and  avoidance  in  discharge.  _Nor 
could  it  be  resorted  to  in  reply  to  a  plea  of  set-off,  for  that  is  a 
cross-demand  of  the  defendant  and  is  not  matter  in  excuse.^ 

^  Crogate's  Case,  8  Co.  Rep.  66.  traverse  de  injuria  .  .  .  absque  residtto 

2  Com.  Dig.  Pleader,  F.  22.  causae,  see  Renno  v.  Bennett,  3  Gal.  & 

8  The  subject  of  protestation  will  be  Dav.  54;  s.  c.  3  Ad.  &  E.  (n.  s.)  768. 
hereafter  considered.  6  Salter  v.  Purchell,  1  Q.  B.  197. 

*  For  an  example  of  the  use  of  the 


rules  which  tend  to  the  production  of  an  issue.     255 

The  Special  Traverse, 

There  is  still  another  species  of  traverse,  which  differs  from 
the  common  form,  and  which  will  require  distinct  notice.  It 
is  called  the  special  traverse,  and  is  a  form  of  pleading 
governed  by  rules  which  are  considered  intricate.  Its  tendency 
to  illustrate  the  general  spirit  and  character  of  the  science 
justifies  its  consideration  at  length,  although  it  has  fallen 
into  general  disuse  and  has  been  abolished  in  the  land  of 
its  birth. 

j^A  special  traverse  is  a  pleading  which  sets  out  with  a 
/detail  of  circumstances,  inconsistent  with  those  stated  in  the 
'preceding  pleading  to  which  it  purports  to  be  an  answer;  it 
then  directly  denies  some  fact  stated  in  that  preceding  plead- 
ing, and  concludes  with  a  verification. ^  The  detail  of  incon- 
sistent circumstances,  with  which  it  commences,  is  termed 
t)iQ  JMdMMwal  to  the  traverse  ;  the  denial  is  called,  from  its 

introductory  words,  tbPi  r^h.^gup.  Jmn^Uvhhnut  this). 

Why  should  this  special  traverse  be  necessary  in  any  case? 

In  many  instances,  occurring  in  ordinary  discussion,  a 
proposition  may  be  so  stated  as  to  require  contradiction,  and 
yet  not  to  admit  of  a  point-blank  or,  as  it  is  called,  a  cate- 
gorical, denial.  In  juridical  disputation  the  same  situation  is 
sometimes  presented,  and  the  special  traverse  is  the  form  of 
qualified  denial  which  the  science  of  pleading  supplies  for  use 
in  that  emergency.  The  student  must  recollect  that  the  Nay ! 
of  the  common  traverse  was  nay  indeed.  If  the  pleader  used 
that,  he  had  to  deny  in  the  very  words  of  his  antagonist's 
pleading.  When  it  was  inconvenient  or  impossible  for  him  to 
do  this,  he,  of  necessity,  resorted  to  the  indirect  or  qualified 
denial  of    the  special  traverse. 

Now  there  were  fourjjlasses  of  circumstances  which  made  it 
desirable  for  the  pleader  to  adopt  this  indirect  form  of  denial : 

(1)  The  case  might  be  one  in  which  some  principle  or  rule 
of  law  was  opposed  to  a  direct  denial ; 

(2)  Some  fact,  ordinarily  immaterial  but  material  in  tlio 
particular  case,  might  be  falsely  pleaded  by  the  adversary,  and 

1  Evans' n.  31. 


256  COMMON-LAW   PLEADING. 

the  purposes  oi  the  defense  would  require  the  materiality  of 
that  fact  to  be  made  apparent  on  the  face  of  the  pleading ; 

(3)  It  might  be  desirable  in  the  particular  case  to  separate 
questions  of  law  from  those  of  fact ; 

(4)  The  defendant  (or  the  party  pleading  the  special  traverse) 
might  wish  to  open  and  conclude  the  cause. 

These  several  instances  may  be  made  plain  by  examples. 

(1)  Employment  of  a  special  traverse  because  an  unqualified 
and  unexplained  denial  is  opposed  to  some  principle  or  rule  of 
law.  "'  "^^^ 

Example :  If  in  an  action  of  covenant  by  the  heir  of  a  lessor, 
against  the  lessee  of  land  for  noji-jxii/ment  of  rent,  the  fact  be 
that  the  lessor  had  no  more  than  an  estate  for  his  life  in  the 
premises,  so  that  the  heir  has  no  interest  therein,  and  the  lessee 
should  traverse  in  the  common  form,  by  averring  "  that  after  the 
making  of  the  said  lease,  the  reversion  of  the  said  demised 
premises  did  not  belong  to  the  said  lessor  and  his  heirs,"  etc.,  it 
would  expose  him  to  the  objection  of  violating  the  well-known 
rule  of  law,  whereby  a  tenant  is  precluded  (or  in  techuical  phrase, 
estopped),  to  say  that  his  lessor  had  no  title  in  the  premises 
demised.  Instead,  therefore,  of  the  general  assertion  that  the 
reversion  did  not  belong  to  the  lessor  and  his  heirs,  which  would 
fall  within  this  prohibition,  the  lessee,  by  means  of  a  special 
traverse,  says  what  he  is  permitted  by  law  to  say,  to  wit :  that 
his  lessor  had  only  a  particular  estate,  which  has  since  expired.^ 

In  a  case,  therefore,  in  which  the  declaration  alleged  a 
seisin  in  fee  in  the  lessor,  and  the  nature  of  the  defence 
was,  that  he  had  a  particular  estate  only  (e.  g.,  an  estate 
for  life),  since  expired,  the  pleader  would  resort  to  a  special 
traverse,  setting  forth  the  lessor's  limited  title,  by  way  of 
inducement,  and  traversing  his  seisin  of  the  reversion  in  fee 
under  the  absque  hoc.  He  thus  would  avoid  the  objection  that 
might  otherwise  arise  on  the  ground  of  estoppel. 

(2)  It  may  be  necessary  to  show  that  in  the  particular  case 
certain  averments  of  fact  are  material  and  should  be  truly 
pleaded. 

Example :  The  plaintiff  in  an  action  for  false  imprisonment 
declares   that    the   defendant,    in   Montgomery   County,  in   the 

1  Blake  v.  Foster,  8  T.  R.  487 ;  Brudnell  v.  Roberts,  2  Wills,  143 ;  Min.  Inst. 
IV.  648. 


RULES   WHICH    TEND   TO   THE   PRODUCTION   OP  AN   ISSUE.      257 

State  of  Maryland,  on  the  1st  day  of  May,  1896,  unlawfully 
arrested  and  detained  him  for  two  days.  Now  ordinarily  aver- 
ments of  time  and  place  are  immaterial,  it  being  manifest  that 
what  is  an  injury  at  one  time  or  place  is  equally  so  at  another. 
But  in  the  case  supposed  these  averments  may  both  be  very 
material,^  for  the  truth  may  be  that  the  arrest  sued  for  was  made 
not  in  Montgomery,  but  in  Prince  George's  County,  Maryland, 
by  the  defendant,  who  was  at  the  time  in  question  sheriff  of 
the  latter  county ;  it  may  be  further  true  that  the  arrest  was 
made  not  on  the  first  but  on  the  tenth  day  of  May,  1896, 
by  virtue  of  a  competent  warrant  of  that  date  which  the 
sheriff  had  on  that  day,  but  which  he  did  not  have  on  the  first 
day  of  May  as  charged.  Here  it  is  evident  that  the  defendant 
must  rely  for  his  defence  on  the  warrant  and  on  the  fact  that  he 
executed  it  within  his  jurisdiction.  In  other  words,  the  aver- 
ments of  time  and  place  are,  in  the  particular  case,  both  material 
for  the  justification  of  the  arrest  so  made  by  him.  Now  he  can 
not  deny  the  truth  of  the  plaintiff's  declaration,  for  it  is  true  save 
as  to  the  averments  of  time  and  place,  which  the  plaintiff  need  not 
prove  as  alleged.  He  can  not  defend  himself  by  pleading  the 
warrant  as  a  justification,  because  it  had  no  existence  on  the  first 
day  of  May,  1896,  and  in  any  event  it  would  not  protect  him  be- 
yond the  limits  of  his  own  county.  His  only  remedy,  therefore, 
is  a  special  traverse.  In  the  inducement  of  this  traverse  he  will 
state  that  on  the  tenth  day  of  May,  1896,  he  was  the  sheriff  of 
Prince  George's  County  aforesaid ;  that  a  writ  had  on  that  day 
been  legally  issued,  and  placed  in  his  hands,  by  virtue  of  which 
he  afterwards,  upon  that  day,  and  in  the  same  county,  arrested  the 
plaintiff,  and  that  this  is  the  same  arrest  complained  of  in  the 
declaration. 

Here  is  a  statement  of  facts  inconsistent  with  that  of  the 
plaintiff,  yet  not  directly  denying  any  matter  stated  in  the  de- 
claration. This  statement  of  inconsistent  matter  shows  that 
the  place  and  time  of  the  arrest,  although  generally  immate- 
rial, are,  in  this  special  case,  material,  and  that  it  is  necessary 
for  the  defendant's  justification  that  they  be  averred  with 
exactness.^ 

But  subsequently  it  was  permitted  in  such  cases  to  plead  in 
confession  and  avoidance,  justifying  the  arrest  by  a  statement 

1  "  In  these  transitory  actions  not    v.  Jones,  1  Saund.  300  f,  n.  (6) ,  Emer- 
only  the  place  but  the  time  may  be    ton  v.  Selby,  2  Ld.  Raym.  1015. 
made  material  by  the  plea."     Greene         2  Evans'  PI.  33,  34. 

17 


258  COMMON-LAW   PLEADING. 

of  the  true  particulars  thereof,  and  adding  an  averment  that 
the  circumstances  so  stated  are  the  same  as  those  complained 
of  in  the  declaration.^  This,  however,  was  a  departure  from 
the  accuracy  of  special  pleading,  for  a  tort  can  not  be  confessed 
and  then  justified. 

(3)  Employment  of  a  special  traverse  in  order  to  separate 
questions  of  law  from  those  of  fact. 

Example :  In  an  action  on  the  case  for  waste,  if  the  defendant 
plead  the  general  traverse  (or  issue)  not  guilty,  the  whole  case 
upon  that  issue  must  be  determined  by  a  jury.  Now  suppose 
that  the  destruction  or  waste  in  question  has  been  committed,  not 
by  iniblic  enemies,  but  by  rebels  in  arms.  It  might  be  very  desir- 
able to  the  defendant  not  to  submit  to  the  jury  the  question  of 
law,  whether  destruction  so  occasioned  is  technical  waste  or  not, 
but  to  have  it  determined  by  the  court.  If  that  be  his  object,  he 
might  effect  it  by  pleading  by  way  of  special  traverse,  setting 
forth  by  way  of  inducement  that  the  destruction  was  occasioned 
by  the  overpowering  violence  of  rebels,  marshalled  in  arms  and 
in  warlike  array,  against  the  existing  government,  which  vio- 
lence it  was  impossible  for  him  to  resist;  and  then  under  the 
absque  hoc,  denying  the  waste  charged:  '^without  this  that  the 
said  defendant  was  guilty  of  the  said  waste  and  destruction  in 
,the  declaration  mentioned."  ^ 

To  such  a  special  traverse  the  plaintiff  must  either  demur, 
upon  the  ground  that  destruction  wrought  by  rebels,  however 
irresistible,  is  no  less  loaste  in  law  than  when  occasioned  by  a 
mob,  or  he  must  join  issue  upon  the  fact  alleged,  and  insist 
that  the  waste  was  not  brought  about  by  rebels  in  arms,  as 
stated  in  the  plea.  In  the  latter  case,  all  question  as  to  the 
law  is  waived,  and  the  jury  are  charged  with  a  mere  matter  of 
fact ;  in  the  former,  the  question  is  one  exclusively  of  law, 
which  the  court  decides.^ 

(4)  Employment  of  a  special  traverse  in  order  to  obtain  for 
the  party  pleading  the  privilege  of  opening  and  concluding  the 
cause. 

The  defendant  is  allowed  upon  such  a  plea  to  open  and 
conclude  the  cause,  because  the  affi,rmative  of  the  issue,  and, 
therefore,  the  burden  of  proof  ,  is  upon  him. 

1  Mellor  V.  Walker,  2  Saund.  4,  5  a,  n.  (3J.         ^  Min.  Inst.  IV.  648,  649. 

2  Green  v.  Cole,  3  Saund.  2.52. 


RULES   WHICH    TEND    TO    THE   PRODUCTION    OF    AN    ISSUE.       259 

Example :  The  plaintiffs  sued  the  defendant  in  trespass  for 
breaking  their  drawbridge,  by  carelessly  "  bringing  a  vessel, 
under  the  command  of  the  defendant,  in  violent  collision  with 
it.  The  defendant,  instead  of  pleading  the  general  issue  and 
denying  that  he  was  guilty  of  the  wrong,  undertook  to  do  so 
with  an  inducement,  by  way  of  explanation,  alleging  that  the 
plaintiffs  had  so  obstructed  the  water-way  between  the  piers  of 
their  draw,  that  a  constant  and  very  strong  current  was  created 
just  at  that  point,  whereby  vessels  passing  through  the  draw 
were  liable,  notwithstanding  the  utmost  pains  and  care  which 
those  who  navigated  them  could  take,  to  be  carried  violently 
against  one  or  the  other  of  the  piers,  and  that  defendant  had 
used  due  care  in  the  management  of  his  vessel ;  without  this, 
that  he  was  guilty  of  any  negligence,"  etc.^ 

It  will  be  seen  at  once  that  this  last  example  is  not  a  legiti- 
mate special  traverse  ;  no  occasion  exists  for  its  use.  A  plea 
of  the  general  issue  would  answer  every  proper  purpose  of  the 
pleader.  But  this  abuse  of  the  special  traverse  was  formerly 
allowed,  and  by  means  of  it  the  pleader  obtained  his  object  and 
had  the  affirmative  of  the  issue. 

A  similar  abuse  of  this  traverse  was  practised  by  the  plaintiff, 
but  it  requires  no  detailed  notice. 

A  special  traverse  must  always  consist  of  three  parts  : 

(1)  The  affirmative  part,  or  inducement,  which  generally 
introduces  new  matter  and  constitutes  the  indirect  or  argu- 
mentative denial. 

(2)  The  negative  part,  which  contains  the  direct  denial,  and, 
as  has  been  seen,  is  called  the  absque  hoc  (without  this)  from 
the  Latin  words  with  which  this  part  formerly  began,  although 
similar  words  as  et  non  ^  (and  not)  might  also  be  used. 

(3)  The  verification  and  prayer  for  judgment,  with  which 
this  form  of  traverse  originally  concluded. 

The  regular  method  of  pleading  in  answer  to  a  special 
traverse  is  to  tender  issue  upon  it,  with  a  repetition  of  the 
allegation  traversed. 

It  will  be  perceived,  therefore,  that  the  effect  of  a  special 

1  Crosskeys  Co.  v.  Eawlings,  3  Bingh.  N.  C.  71. 

2  Bennet  v.  Filkins,  1  Saund.  21. 


260  ^     COMMON-LAW  PLEADING. 

traverse  is  to  postpone  the  issue  to  one  stage  of  the  pleading 
later  than  it  would  be  attained  by  a  traverse  in  the  commoa 
form. 

The  ancient  pleader  appears  to  have  been  mainly  influenced 
by  the  preceding  considerations  in  his  frequent  adoption  of  an 
inducement  of  new  affirmative  matter,  tending  to  explain  or 
qualify  the  denial.  But,  though  these  considerations  show  the 
purpose  of  the  inducement,  they  do  not  account  for  the  two 
other  distinctive  features  of  the  special  traverse,  viz.  :  the 
absque  hoc  and  the  conclusion  with  a  verification.  For,  it  will 
naturally  suggest  itself,  the  affirmative  matter  might,  in  each 
of  the  above  cases,  have  been  pleaded  per  se,  without  the 
addition  of  the  absque  hoc.  So,  whether  the  absque  hoc  were 
added  or  not,  the  pleading  might,  consistently  with  any  of 
the  above  reasons,  have  tendered  issue,  like  a  common  traverse, 
instead  of  concluding  with  a  verification.  These  latter  forms 
were  dictated  by  other  principles.  The  direct  denial  under  the 
absque  hoc  was  rendered  necessary  by  this  consideration  :  that 
the  affirmative  matter,  taken  alone,  would  be  only  an  indirect 
(or,  as  it  is  called  in  pleading,  argumentative)  denial  of  the 
preceding  statement ;  and,  by  a  rule  which  will  be  considered 
in  its  proper  place  hereafter,  all  argumentative  pleading  is 
prohibited.  In  order,  therefore,  to  avoid  this  fault  of  argumen- 
tativeness, the  course  adopted  was,  to  follow  up  the  explanatory 
matter  of  the  inducement  with  a  direct  denial.^  Thus,  to 
allege,  as  in  the  first  example,  that  the  lessor  was  seised  for 
life,  would  be  to  deny  by  implication,  but  by  implication  onli/y 
that  the  reversion  belonged  to  him  in  fee  ;  and  therefore,  to 
avoid  argumentativeness,  a  direct  denial  that  the  reversion 
belonged  to  him  in  fee  is  added,  under  the  formula  of  absque 
hoc.  With  respect  to  the  verification,  this  conclusion  was 
adopted  in  a  special  traverse,  in  obedience  to  another  rule, 
of  which  there  will  also  be  occasion  to  speak  hereafter,  viz. : 
that  wherever  new  matter  is  introduced  in  a  'pleading  it  is  im- 
proper to  tender  issue,  and  the  conclusion  must  consequently  be 

1  Beeves'  Hist.  11.  625;  Bac.  Ab.  301  ;  Herring  w.  Blacklow,  Cro.  Eliz.  30  ; 
Pleas,  &c.  H. ;  Courtney  v.  Phelps,  1  Sid.    10  Hen.  VI.  7  PI.  21. 


RULES  WHICH   TEND   TO   THE   PRODUCTION   OF   AN   ISSUE.      261 

with  a  verification.    The  inducement  setting  forth  new  matter 
makes  a  verification  necessary,  in  conformity  with  that  rule. 

Having  now  explained  the  form,  the  effect,  and  the  use  and 
object  of  a  special  traverse,  it  remains  to  show  in  what  cases 
this  method  of  pleading  is  or  ought  to  be  applied  at  the  present 
day.  First,  it  is  to  be  observed  that  this  form  was  at  no 
period  applicable  to  every  case  of  denial,  at  the  pleasure  of 
the  pleader.  There  are  many  cases  of  denial  to  which  the 
scheme  of  special  traverse  has  never  been  applied,  and  which 
have  always  been  and  still  are  the  subjects  of  traverse  in  the 
common  form  exclusively.^  These  it  is  not  easy  to  enumerate 
or  define ;  they  are  determined  by  the  course  of  precedent, 
and  in  that  way  become  known  to  the  practitioner.  On  the 
other  hand,  in  many  cases  where  the  special  traverse  anciently 
occurred,  it  is  now  no  longer  used,  especially  that  species  of 
it  which  is  illustrated  by  the  last  example.  Even  when  the 
formula  was  most  in  repute,  the  use  of  that  species  does  not 
appear  to  have  been  regarded  as  matter  of  necessity  ;  and,  in 
cases  which  admit  or  require  no  allegation  of  new  matter, 
we  find  the  special  and  the  common  traverse  to  have  been 
indifferently  used  by  the  pleaders  of  those  days.^  But  in 
modern  times  the  special  traverse,  without  an  inducement  of 
new  matter,  has  been  considered,  not  only  as  unnecessary^ 
but  as  frequently  improper.  As  the  taste  in  pleading 
gradually  simplified  and  improved,  the  prolix  and  dilatory 
effect  of  a  special  traverse  brought  it  into  disfavor  with  the 
courts  ;  and  they  began,  not  only  to  enforce  the  doctrine 
that  the  common  form  might  be  substituted  in  cases  where 
there  was  no  inducement  of  new  matter,  but  often  intimated 
their  preference  of  that  form  to  the  other.^  Afterwards  tliey 
appear  to  have  gone  further,  and  to  have  established  in  favor 
of  the  common  plan  of  traverse,  in  cases  where  there  is  no 
allegation  of  new  matter,  the  following  rule  of  distinction  : 
That  where  the  whole  substance  of  the  last  pleading  is  denied, 
the  conclusion  must  be  to  the  country,  or,  in  other  words,  the 

^  Home  V.  Lewin,  I  Ld.  Raym.  641. 

2  Rast.  Ent.  622  ;  and  see  Home  v.  Lewin,  ubi  supra. 

8  Robinson  v.  Rayley,  1  Burr.  320. 


262  COMMON-LAW  PLEADING. 

traverse  must  be  in  the  common  form  ;  hut  where  one  of 
several  facts  only  is  the  subject  of  denial,  the  conclusion  may  he 
either  to  the  country  or  with  a  verification  ;  that  is,  the  traverse 
may  be  either  common  or  special,  at  the  option  of  the  pleader} 
It  is  not  easy  to  trace  either  the  original  authority,  or  even 
a  very  satisfactory  reason,  for  this  distinction.  It  does  not 
appear  to  coincide  with  the  practice  at  a  former  period, 
which  certainly  allowed  special  traverses,  though  without 
an  inducement  of  new  matter,  in  many  cases  where  the  whole 
substance  ^of  the  pleading  was  denied  ;  and  its  true  origin  is 
perhaps  to  be  referred  to  the  inclination  of  the  courts  to 
discourage  this  formula.  From  the  time  that  the  special 
traverse  thus  fell  into  disrepute,  it  has  been  much  neglected, 
even  in  cases  where  permissible ;  and  it  now  rarely  occurs  in 
any  instance  wliere  there  is  no  inducement  of  new  matter, 
although  the  denial  relate  to  one  out  of  several  facts  only. 
With  respect  to  the  other  kind  of  special  traverse,  viz.,  that 
which  is  attended  with  an  inducement  of  new  matter,  the  case  is 
very  different.  This  was  originally  devised,  as  has  been  shown, 
for  certain  reasons  of  convenience  or  necessity  ;  and  those 
reasons  still  occasionally  apply.  However,  in  the  general 
decline  of  the  method  of  special  traverse  there  is  felt  in 
practice  a  great  disinclination  to  adopt  in  any  case  whatever, 
without  a  clear  reason  for  doing  so,  this  discredited  form ; 
and  this  more  particularly  because  of  the  disadvantages  with 
which  it  is  attended.  These  disadvantages  consist  not  only 
in  prolixity  and  delay,  but  in  the  additional  inconvenience 
that  the  inducement  tends  to  disclose  the  real  nature  of  the 
party's  case,  by  giving  notice  to  his  adversary  of  the  precise 
grounds  on  which  the  denial  proceeds,  and  thus  facilitates 
to  the  latter  the  preparation  of  his  proofs,  or  otherwise  guides 
him  in  his  further  proceedings.  For  these  reasons  the  special 
traverse  is  perhaps  daily  becoming  more  rare.  And  even 
though  the  case  be  such  as  would  admit  of  an  inducement 
of  new  matter  explanatory  of  the  denial,  the  usual  course  is 
to  omit  any  such   inducement,  and  to  make  the  denial  in 

1  See  1  Saund.  103  a,  b,  n.  3;  Bac.  Ab.   Pleas,   &c.   381,  notes;   Smith  v. 
Dovers,  2  Doug.  430. 


EULES  WHICH   TEND   TO   THE  PRODUCTION   OP  AN  ISSUE.      263 

an  absolute  form,  with  a  tender  of  issue ;  thus  substituting 
the  common  for  the  special  formula.  The  latter,  howev^er, 
appears  to  be  still  always  allowable  when  the  case  is  such 
as  admits  of  an  inducement  of  new  matter,  except  in  certain 
instances  before  noticed,  to  which,  by  the  course  of  precedent, 
the  common  form  of  traverse  has  always  been  exclusively 
applied.  And,  where  allowable,  it  should  still  be  occasionally 
adopted,  by  reason  of  the  various  grounds  of  necessity  or 
convenience  by  which  it  was  originally  suggested.  Accord- 
ingly, it  is  apprehended  that  in  the  first  three  examples  a 
special  traverse  would  be  as  proper  at  the  present  day  as  it 
was  at  the  period  when  the  precedents  first  occurred. 

It  will  be  necessary  now  to  advert  to  certain  principles  laid 
down  in  the  books  relative  to  this  form. 

/The  Inducement   should  be  such  as  in  itself  Amounts 
\        TO   A  Sufficient  Answer  in  Substance  to  the  Last 
Pleading.! 

For,  as  has  been  shown,  it  is  the  use  and  object  of  the 
inducement  to  give  an  explained  or  qualified  denial ;  that  is,  to 
state  such  circumstances  as  tend  to  show  that  the  last  pleading 
is  not  true;  t'^e  ah'sque  hoc  being  added  merely  to  put  that 
denial  in  a  positive  form,  which  had  previously  been  made 
in  an  indirect  one.  Now,  an  indirect  denial  amounts^  in 
substance,  to  an  answer;  and  it  follows,  therefore,  that  an 
Inducement,  if  properly  framed,  must  always  in  itself  contain, 
without  the  aid  of  the  absque  hoc,  an  answer  in  substance  to 
the  last  pleading.  Thus,  in  the  first  example,  the  allegation 
that  the  lessor  was  seised  for  life,  and  that  his  estate  is  since 
determined,  is  in  itself,  in  substance,  a  sufficient  answer,  as 
denying,  by  implication,  that  the  fee  descended  from  the  lessor 
to  the  plaintiff. 

^  The  Inducement  must  not  consist  of  a  Direct  Denial. 

It  follows,  from  the  same  consideration  as  to  the  object 
and  use  of  a  special  traverse,  that  the  answer  given  by  the 
inducement  can  properly  be  of  no  other  nature  than  that  of  an 

1  Bac.  Ab.  H.  1 ;  Com.  Dig.  Pleader,  G.  20 ;  Anon.  3  Salk.  353 ;  Dike  v.  Eicks, 
Cro.  Car.  336. 


264  COMMON-LAW   PLEADING. 

iudirect  denial.     Accordingly,  we  find  it  decided,  in  the  first 
place,  that  it  must  not  consist  of  a  direct  denial. 

Example :  The  plaintiff  in  an  audita  querela,  being  bound  by 
recognizance  to  pay  J.  Bush  £300  in  six  years,  by  £50  per  annum, 
at  a  certain  place,  alleged  that  he  was  ready  every  day,  at  that 
place,  to  have  paid  to  Bush  the  said  £50,  but  that  Bush  was  not 
there  to  receive  it.  To  this  the  defendant  pleaded,  that  J.  Bush 
was  ready  at  the  place  to  receive  the  £50,  absque  hoc,  that  the 
plaintiff  was  there  ready  to  have  paid  it.  The  plaintiff  demurred, 
on  the  ground  that  the  inducement,  alleging  Bush  to  have  been 
at  the  place  ready  to  receive,  contained  a  direct  denial  of  the 
plaintiff's  precedent  allegation  that  Bush  was  not  there,  and  should 
therefore  have  concluded  to  the  country,  without  the  absque  hoc  ; 
and  judgment  was  given  accordingly  for  the  plaintiff.^ 

The  Inducement  must  not  be  in  the  Nature  of  a  Confes- 
sion  AND   AVOIDANCE.2 

Example :  If  the  defendant  makes  title  as  assignee  of  a  term 
of  years  of  A.,  and  the  plaintiff,  in  answer  to  this,  claims  under 
a  prior  assignment  to  himself  from  A.  of  the  same  term,  this  is  a 
confession  and  avoidance ;  for  it  admits  the  assignment  to  the 
defendant,  but  avoids  its  effect,  by  showing  the  prior  assignment. 
Therefore,  if  the  plaintiff  pleads  such  assignment  to  himself  by 
way  of  inducement,  adding  under  an  absque  hoc,  a  denial  that  A. 
assigned  to  the  defendant,  this  special  traverse  is  bad.^  The 
plaintiff  should  have  pleaded  the  assignment  to  himself  as  in 
confession  and  avoidance,  without  the  traverse. 

There  must  be  no  Traverse  upon  a  Traverse. 

Again,  it  is  a  rule  with  respect  to  special  traverses,  that  the 
opposite  party  has  no  right  to  traverse  the  inducement,*  or 
(as  the  rule  is  more  commonly  expressed)  that  there  must  be 
no  traverse  upon  a  traverse.^  Thus,  in  the  first  example,  if 
the  plaintiff,  instead  of  taking  issue  on  the  traverse,  should 
traverse  the  inducement,  either  in  the  common  or  the  special 

1  Hughes  V.  Phillips,  Yelv.  38 ;  and         *  Anon.  3  Salk.  353. 

see  36  Hen.  VI.  15.  s  Com.   Dig.  Pleader,  G.  17  ;   Bac. 

2  Com.- Dig.  Pleader,  G.  3  ;  Lambert  Ab.  Pleas,  &c.  H.  4;  The  King  v. 
V.  Cook,  1  Ld.  Raym.  238 ;  Helier  v.  Bishop  of  Worcester,  Vaugban,  62  ; 
Whrtier,   Cro.   Eliz.  650.  Digby  v.   Fitzharbert,   Hob.    104. 

^  Com.   Dig.  ubi  supra ;    Helier  v. 
Whytier,  ubi  supra. 


RULES  WHICH   TEND  TO   THE   PRODUCTION   OF  AN  ISSUE.      265 

form,  denying  that  the  lessor,  at  the  time  of  making  the  inden- 
ture, was  seised  in  his  demesne  as  of  freehold  for  the  term  of  his 
natural  life,  etc.,  such  replication  would  be  bad,  as  containing 
a  traverse  upon  a  traverse.  The  reason  of  this  rule  is  clear 
and  satisfactory.  By  the  first  traverse  a  matter  is  denied  by 
one  of  the  parties  which  had  been  alleged  by  the  other,  and 
which,  having  once  alleged  it,  the  latter  is  bound  to  maintain 
mstead  of  prolonging  the  series  of  the  pleading  and  retarding 
the  issue  by  resorting  to  a  new  traverse. 

Exeeptimi :  There  may  he  a  traverse  ujpon  a  traverse  when  the 
first  is  <i   had  one} 

In  other  words,  if  the  denial  under  the  ahs(jue  hoc  of  the 
first  traverse  be  insufficient  in  law,  it  may  be  passed  by,  and 
aTnew  traverse  taken  on  the  inducement. 

Example :  In  an  action  of  prohibition,  the  plaintiff  declared 
that  he  was  elected  and  admitted  one  of  the  common  council  of 
the  city  of  London,  but  that  the  defendants  delivered  a  petition 
to  the  court  of  common  council,  complaining  of  an  undue  election, 
and  suggesting  that  they  themselves  were  chosen ;  whereas 
(the  plaintiff  alleged)  the  common  council  had  no  jurisdiction  to 
examine  the  validity  of  such  an  election,  but  the  same  belonged  to 
the  court  of  the  mayor  and  aldermen.  The  defendants  pleaded 
that  the  common  council,  time  out  of  mind,  had  authority  to 
determine  the  election  of  common  councilmen;  and  that  the 
defendants,  being  duly  elected,  the  plaintiff  intruded  himself  into 
the  office  ;  whereupon  the  defendants  delivered  their  petition  to 
the  common  council,  complaining  of  an  undue  election ;  without 
this^  that  the  jurisdiction  to  examine  the  validity  of  such  election 
belonged  to  the  court  of  the  mayor  and  aldermen.  The  plaintiff 
replied  ^  by  traversing  the  inducement ;  that  is,  he  pleaded  that 
the  common  council  had  not  authority  to  determine  the  election 
of  common  councilmen,  concluding  to  the  country.  To  this  the 
defendant  demurred,  and  the  court  adjudged  that  the  first  traverse 
was  bad,  because  the  question  in  this  prohibition  was  not  whether 
the  court  of  aldermen  had  jurisdiction,  but  whether  the  common 
council  had  ;  and  that,  the  first  traverse  being  immaterial,  the 
second  was  well  taken. 

1  Com.    Dig.    Pleader,    G.    18,    19;  2  "  Though  the  plaintiff  might  have 

Thrale  v.  Bishop  of  Loudon,  1   H.  Bl.  demurred,  yet  he  was  at  liberty  to  go 

376 ;  Richardson  v.  Mayor  of  Oxford,  2  on   to  try  the   riglit."      (Pratt,  C.  J., 

II.  Bl.  186 ;  King  qui  tarn  v.  Bolton,  Str.  King  qui  tarn  v.  Boltou,  Str.  117,  119.) 

117,  Crosse  v.  Hunt,  Garth.  99.  »  Ibid. 


266  common-law  pleading. 

The  Inducement  can  not  be  Confessed  and  Avoided. 

As  the  inducement  can  not,  when  the  denial,  under  the 
absque  hoc,  is  sufficient  in  law,  be  traversed,  so,  for  the  same 
reasons,  it  can  not  be  answered  by  a  pleading  in  confession  and 
avoidance.  But,  on  the  other  hand,  if  the  denial  be  insuffi- 
cient in  law,  the  opposite  party  has  then  a  right  to  plead  in 
confession  and  avoidance  of  the  inducement,^r  (according  to 
the  nature  of  the  case)  to  traverse  it ;  or  he  may  demurjto  the 
whole  traverse  for  the  insufficiency  of  the  denial. 

As  the  inducement  of  a  special  traverse,  when  the  denial 
under  the  absque  hoc  is  sufficient,  can  neither  be  traversed 
nor  confessed  and  avoided,  it  follows  that  there  is,  in  that 
case,  no  manner  of  pleading  to  the  inducement.  The  only 
way,  therefore,  of  answering  a  good  special  traverse  is  to 
plead  to  the  absque  hoc,  which  is  done  by  tendering  issue  on 
such  denial. 

But,  though  there  can  be  no  pleading  to  an  inducement, 
when  the  denial  under  the  absque  hoc  is  sufficient,  yet  the  in- 
ducement may  be  open,  in  that  case,  to  exception  in  point  of 
law.  If  it  be  faulty  in  any  respect,  as,  for  example,  in  not 
containing  a  sufficient  answer  in  substance,  or  in  giving  an 
answer  by  way  of  direct  denial,  or  by  way  of  confession  and 
avoidance,  the  opposite  party  may  demur  to  the  whole  trav- 
erse, though  the  absque  hoc  be  good,  for  this  insufficiency  in 
the  inducement.^ 

Rules  pertaining  to  Traverses  in  General. 

The  different  hinds,  or  forms  of  traverse,  having  been  now 
explained,  it  will  be  proper  next  to  advert  to  certain  princi- 
ples which  belong  to  traverses  in  general. 

(1)   A  Traverse  must  Deny  "  Modo  et  Forma." 

'  The  first  of  these  that  may  be  mentioned  is,  that  it  is  the 
nature  of  a  traverse  to  deny  the  allegation  in  the  manner  and 
form  in  which  it  is  made,  and  therefore  to  put  the  opposite 
party  to  prove  it  to  be  true  in  manner  and  form,  as  well  as  in 
1  Com.  Dig.  Pleader,  G.  22 ;  Foden  v.  Haines,  Comb.  245. 


EULES   WHICH    TEND   TO   THE   PRODUCTION   OP   AN   ISSUE.      267 

general  effect.  Accordingly,  he  is  often  exposed  at  the  trial 
to  the  danger  of  a  variance,  for  a  slight  deviation  in  his  evi- 
dence from  his  allegation. 

This  doctrine  of  variance  we  now  perceive  to  be  founded  on 
the  strict  quality  of  the  traverse  here  stated.  It  has  been  ex- 
plained, however,  that  this  strictness  is  so  far  modified  that 
it  is,  in  general,  sufficient  to  prove  accurately  the  substance  of 
the  allegation ;  and  that  a  deviation  in  point  of  mere  form,  or 
in  matter  quite  immaterial,  will  be  disregarded. 

On  this  subject  of  variance,  or  the  degree  of  strictness  with 
which,  in  different  instances,  the  traverse  puts  the  fact  in  issue, 
there  are  a  great  number  of  adjudged  cases,  involving  much 
nicety  of  distinction ;  but  it  does  not  belong  to  this  work  to 
enter  into  it  more  fully.  The  general  principle  is  that  which 
is  here  stated,  that  the  traverse  brings  the  fact  into  question, 
according  to  the  manner  and  form  in  which  it  is  alleged;  and 
that  the  opposite  party  must  consequently  prove  that,  in  sub- 
stance, at  least,  the  allegation  is  accurately  true.  The  existence 
of  this  principle  is  indicated  by  the  wording  of  a  traverse,  which, 
when  in  the  negative,  generally  denies  the  last  pleading  7nodo 
et forma,  "  in  manner  and  form  as  alleged."  ^  This  will  be  found 
to  be  the  case  generally,  except  in  the  general  issue  non  est  fac- 
tum and  the  replication  de  injuria,  which  are  almost  the  only 
negative  traverses  that  are  not  pleaded  modo  et  forma.  These 
words,  however,  though  usual,  are  said  to  be  in  no  case  strictly 
essential,  so  as  to  render  their  omission  cause  of  demurrer.^ 

It  is  naturally  a  consequence  of  the  principle  here  men- 
tioned, that  great  accuracy  and  precision,  in  adapting  the 
allegation  to  the  true  state  of  the  fact,  are  observed  in  all 
well-drawn  pleadings ;  the  vigilance  of  the  pleader  being  always 
directed  to  these  qualities,  in  order  to  prevent  any  risk  of 
variance  or  failure  of  proof  at  the  trial,  in  the  event  of  a 
traverse  by  the  opposite  party. 

1  But,    notwithstanding    the    words  &  Bing.  536.)     As  to  the  effect  of  these 

modo  et  forma,  it  is   enough  to   prove  words,  as  covering  the  whole  matter  of 

the  substance  of  the  allegation.     (See  the  allegation  traversed,  see  Weathrell 

Litt.  sect.  483;  Doct.  PI.  344;   Harris  ?;.  Howard,  3  Bing.  13.5. 
V.  Ferrand,  Hardr.  39 ;  Pope  v.  Skinner,         2  (^oni.   Dig.   Pleader,  G.  1 ;    Nevil 

Hob.  72 ;  Carvick  v.  Blagrave,  1  Brod.  and  Cook's  Case,  2  Leo.   5. 


268  COMMON-LAW  PLEADING. 

(2)  A  Traverse  must  not  be  taken  on  Matter  of  Law. 

Again,  with  respect  to  all  traverses,  it  is  laid  down  as  a 
rule,  that  a  traverse  must  not  he  taken  upon  matter  of  law} 
For  a  denial  of  the  law  involved  in  the  preceding  pleading  is, 
in  other  words,  an  exception  to  the  sufficiency  of  that  pleading 
jin  point  of  law,  and  is  therefore  within  the  scope  and  proper 
Iprovince  of  a  demurrer  and  not  of  a  traverse. 

Example :  Where,  to  an  action  of  trespass  for  fishing  in  the 
plaintiffs  fishery,  the  defendant  pleaded  that  the  locus  in  quo 
was  an  arm  of  the  sea,  in  which  every  subject  of  the  realm  had 
the  liberty  and  privilege  of  free  fishing,  and  the  plaintiff,  in  his 
replication,  traversed  that  in  the  said  arm  of  the  sea  every 
subject  of  the  realm  had  the  liberty  and  privilege  of  free  fishing, 
this  was  held  to  be  a  traverse  of  a  mere  inference  of  law,  and 
therefore  bad.*^ 

Upon  the  same  principle,  if  a  matter  be  alleged  in  pleading, 
"  by  reason  whereof  "  {virtute  cujus)  a  certain  legal  inference 
is  drawn,  as  that  the  plaintiff  "  became  seised,"  etc.,  or  the 
defendant  "  became  liable,"  etc.,  this  virtute  cujus  is  not  trav- 
ersable ;  ^  because,  if  it  be  intended  to  question  the  facts  from 
which  the  seisin  or  liability  is  deduced,  the  traverse  should  be 
applied  to  the  facts,  and  to  those  only  ;  and,  if  the  legal  infer- 
ence be  doubted,  the  course  is  to  demur.  But,  on  the  other 
hand,  where  an  allegation  is  mixed  of  law  and  fact,  it  may  be 
traversed.* 

Examples :  (1)  In  answer  to  an  allegation  that  a  man  was 
"  taken  out  of  prison  by  virtue  of  a  certain  writ  of  habeas  corpus,^'' 
it  may  be  traversed  that  he  was  "  taken  out  of  prison  by  virtue 
of  that  writ."  ^ 

(2)  Where  it  was  alleged  in  a  plea  that,  in  consequence  of  cer- 
tain circumstances  therein  set  forth,  it  belonged  to  the  wardens 

1  1  Saund.  23,  n.  5;  Doct.  PI.  351  ;  ^  Doct.P1.351 ;  PriddleandNapper's 
Kenicot  v.  Bogan,  Yelv.  200 ;   Priddle    Case,  uhi  supra. 

and  Napper's  Case,  11  Co.  Rep.  10  b  ;  *  1    Saund.   23,   n.  5,   and    see  the 

Richardson  v.  Mayor  of  Oxford,  2  H.  instances  cited;    Bac.   Ab.   Pleas,    &c. 

Bl.  182.                   '  380,  note  h,  5th  ed. ;  Beal  v.  Simpson, 

2  Richardson  v.  Mayor  of  Oxford,  1  Ld.  Raym.  412 ;  Grocers' Company  v. 
uhi  supra.  (A  most  interesting  case,  Archbishop  of  Canterbury,  3  Wils.  234. 
which  the  student  should  carefully  ^  Beal  v.  Simpson,  ubi  supra ;  Treby, 
examine.)  Ch.  J.,  cont. 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OF   AN   ISSUE.      269 

and  commonalty  of  a  certain  body  corporate  to  present  to  a 
certain  church,  being  vacant,  in  their  turn,  being  the  second  turn, 
and  this  was  answered  by  a  special  traverse,  ivithout  this,  that  it 
belonged  to  the  said  wardens  and  commonalty  to  present  to  the 
said  chuich,  at  the  second  turn,  when  the  same  became  vacant, 
etc.,  in  manner  and  form  as  alleged,  the  court  held  the  traverse 
good,  as  not  applying  to  a  mere  matter  of  law,  "  but  to  a  matter 
of  law,  or  rather  of  right  resulting  from  facts."  ^ 

(3)  So  it  is  held,  upon  the  same  principle,  that  traverse  may  be 
taken  upon  an  allegation  that  a  certain  person  obtained  a  church 
by  simony.  2 

(3)  A  Traverse  must  not  be  taken  upon  Matter  not 

ALLEGED. 

It  is  also  a  rule,  that  a  traverse  must  not  he  taken  upon  matter 
not  alleged.^  The  meaning  of  this  rule  will  be  sufficiently 
explained  by  the  following  cases  :  — 

Examples:  (1)  A  woman  brought  an  action  of  debt  on  a  deed,  by 
which  the  defendant  obliged  himself  to  pay  her  £200  on  demand, 
if  he  did  not  take  her  to  wife,  and  alleged  in  her  declaration  that, 
though  she  had  tendered  herself  to  marry  the  defendant,  he  re- 
fused, and  married  another  woman.  The  defendant  pleaded  that, 
after  making  the  deed,  he  offered  himself  to  marry  the  plaintiff, 
and  she  refused ;  absque  hoc,  "  that  he  refused  to  take  her  for  his 
wife  before  she  had  refused  to  take  him  for  her  husband."  The 
court  was  of  opinion  that  this  traverse  was  bad ;  because  there 
had  been  no  allegation  in  the  declaration  ■'  that  the  defendant 
had  refused  before  the  plaintiff  had  refused ; "  and  therefore 
the  traverse  went  to  deny  what  the  plaintiff  had  not  affirmed.* 
The  plea  in  this  case  ought  to  have  been  in  confession  and 
avoidance  ;  stating  merely  the  affirmative  matter,  that  before  the 
plaintiff  offered  the  defendant  offered,  and  that  the  plaintiff  had 
refused  him  ;  and  omitting  the  absque  hoc. 

(2)  Again,  in  an  action  of  debt  on  bond  against  the  defendant, 
as  executrix  of  J.  S.,  she  pleaded  in  abatement  that  J.  S.  died 
intestate,  and  that  administration  was  granted  to  her.  On 
demurrer,  it  was  objected,  that  she  should  have  gone  on  to 
traverse  "  that  she  meddled  as  executrix  before  the  administration 
granted ;  "  because,  if  she  so  meddled,  she  was  properly  charged 

1  Grocers'   Company  v.  Archbishop  Crosse  v.  Hunt,  Carth.  99 ;   Powers  v. 

nf  Canterbury,  3  Wils.  234.  Cook,  1  Ld.  Raym.  63 ;  s.  c.  1  Salk.  298. 
■^  Ibid. ;  Rast.  Ent.  532  a.  *  Crosse  v.  Hunt,  ubi  supra, 

3  1  Saund.  312  d,  n.  4 ;  Doct.  PI.  358  ; 


270  COMMON-LAW  PLEADING. 

as  executrix,  notwithstanding  the  subsequent  grant  of  letters  of 
administration.  But  the  court  held  the  plea  good  in  that  respect ; 
and  Holt,  C.  J.,  said,  "  that,  if  the  defendant  had  taken  such 
traverse,  it  had  made  her  plea  vicious ;  for  it  is  enough  for  her 
to  show  that  the  plaintiff's  writ  ought  to  abate,  which  she  has 
done,  in  showing  that  she  is  chargeable  only  by  another  name. 
Then,  as  to  the  traverse,  that  she  did  not  administer  as  executrix 
before  the  letters  of  administration  were  granted,  it  would  be  to 
traverse  what  is  not  alleged  in  the  plaintiff's  declaration  ;  which 
would  be  against  a  rule  of  law,  that  a  man  shall  never  traverse 
that  which  the  plaintiff  has  not  alleged  in  his  declaration."  ^ 

Exception :  A  traverse  may  he  taken  itpon  matter  which, 
though  not  expressly  alleged,  is  necessarily  implied? 

Example :  In  replevin  for  taking  cattle,  the  defendant  made 
cognizance  that  A.  was  seised  of  the  close  in  question,  and,  by 
his  command,  the  defendant  took  the  cattle  damage  feasant.  The 
plaintiff  pleaded  in  bar,  that  he  himself  was  seised  of  one  third 
part,  and  put  in  his  cattle,  absque  hoc,  "  that  the  said  A.  was  sole 
seised^  On  demurrer,  it  was  objected  that  this  traverse  was 
taken  on  matter  not  alleged,  the  allegation  being  that  A.  was 
seised,  not  that  A.  was  sole  seised.  But  the  court  held,  that  in 
the  allegation  of  seisin  that  of  sole  seisin  was  necessarily  implied, 
and  that  whatever  is  necessarily  implied  is  traversable,  as  much 
as  if  it  were  expressed.     Judgment  for  plaintiff.^ 

The  court,  however,  observed  that,  in  this  case,  the  plaintiff 
was  not  obliged  to  traverse  the  sole  seisin ;  and  that  the  effect 
of  merely  traversing  the  seisin  mode  et  forma,  as  alleged, 
would  have  been  the  same  on  the  trial  as  that  of  traversing 
the  sole  seisin. 

(4)  A  Paety  to  a  Deed,  who  Traverses  it,  must  Plead 
"NoN  EST  Factum." 

Another  rule  that  may  be  referred  to  this  head,  though  of  a 
more  special  and  limited  application  than  the  former,  is  the 
following  :  that  a  party  to  a  deed,  who  traverses  it,  must  plead 
^^  nonest  factum,^^  and  should  not  plead  that  he  did  not  grant, 

1  Powers  V.  Cook.  1  Ld.  Raym.  63;  Parker,  2  Salk.  629;  s.  c.  6  Mod.  158; 
s.  c.  1  Salk.  298.  Meriton  v.  Briggs,  1  Ld.  Raym.  39. 

2  1   Saund.  312  d,  n.  4;   Gilbert  v.         *  Gilbert  v.  Parker,  ubi  supra. 


RULES   WHICH   TEND   TO   THE   PEODUCTION   OF   AN   ISSUE.      271 

did  not  demise,  etc.^    This  rule  seems  to  depend  on  the  doctrine 
of  estoppel. 

A  man  is  sometimes  precluded,  in  law,  from  alleging  or 
denying  a  fact  in  consequence  of  his  own  previous  act,  allega- 
tion, or  denial  to  the  contrary,  and  this  preclusion  is  called  an 
estoppel.^  It  may  arise  (1)  from  matter  of  record,  (2)  from 
the  deed  of  the  party,  or  (3)  from  matter  in  pais,  that  is, 
matter  of  fact? 

(1)  Thus,  any  confession  or  admission  made  in  pleading  in 
a  court  of  record,  whether  it  be  express  or  implied  from 
pleading  over  without  a  traverse,  will  forever  preclude  the 
party  from  afterwards  contesting  the  same  fact,  in  any  subse- 
quent suit,  with  the  same  adversary.^  This  is  an  estoppel  by 
matter  of  record. 

(2)  As  an  instance  of  an  estoppel  by  deed,  may  be  men- 
tioned the  case  of  a  bond  reciting  a  certain  fact.  The  party 
executing  that  bond  will  be  precluded  from  afterwards  denying, 
in  an  action  brought  upon  that  instrument,  the  fact  so  recited.^ 

(3)  An  example  of  an  estoppel  by  matter  in  pais  occurs  when 
one  man  has  accepted  rent  of  another.  He  will  be  estopped 
from  afterwards  denying,  in  any  action,  with  that  person,  that 
he  was,  at  the  time  of  such  acceptance,  his  tenant.^ 

It  is  from  this  doctrine  of  estoppel,  apparently,  that  the 
rule  now  under  consideration  as  to  the  mode  of  traversing 
deeds  has  resulted .''  For  though  a  party  against  whom  a 
deed  is  alleged  may  be  allowed,  consistently  with  the  doctrine 
of  estoppel,  to  say  non  est  factum,  viz.,  that  the  deed  is  not 
his,  he  is,  on  the  other  hand,  precluded  by  that  doctrine  from 
denying  its  effect  or  operation  ;  because,  if  allowed  to  say  non 
concessit  or  non  demisit,  when  the  instrument  purports  to  grant 

1  Doct.  PI.  261 ;  Robinson  v.  Corbett,  East.  .346  ;  Vooght  v.  Winch,  2  Barn.  & 
Lutw.  662 ;  Taylor  v.  Needham,  2  Taunt.    Aid.  662. 

278.  5  Bonner  v.  Wilkinson,  5   Barn.  & 

2  An  estoppel  is,  "  when  a  man's  own  Aid.  682;  and  see  Baker  v.  Dewey,  1 
act  or  acceptance  stoppeth  or  closeth  up    Barn.  &  Cress.  704. 

his  mouth  to  allege  or  plead  the  truth."         ^  Com.   Dig.   Estoppel,   A.   3;    Co. 

(Co.  Litt.  352  a.)  Litt.  iihi  supra. 

8  Co.  Litt.  352  a.  7  See  39  Ed.  IIL  3 ;  Taylor  v.  Need- 

*  Bract.  421  a ;  Com.  Dig.  Estoppel,  ham,  ubi  supra. 
A.  1  ;  and  see  Outram  v.  Morewood,  3 


272  COMMON-LAW   PLEADING. 

or  to  demise,  he  would  be  permitted  to  contradict  his  own 
deed.  Accordingly,  it  will  be  found  that  in  the  case  of  a 
person  not  a  party,  but  a  stranger  to  the  deed,  the  rule  is 
reversed,  and  the  fc^m  of  traverse  in  that  case  is  non  con- 
cessit, etc.,^  the  reason  of  which  seems  to  be,  that  estoppels  do 
not  hold  with  respect  to  strangers.^ 

The  doctrine  of  traverse  being  now  discussed,  the  next 
subject  for  consideration  is  — 

(B)  Pleadings  in  Confession  and  Avoidance. 

The  Nature  and  Properties  of  Pleadings  in  Confession 
AND  Avoidance. 

Pleas  in  confession  and  avoidance  are  divided,  with  respect 
to  their  subject-matter,  into  two  classes  :  — 

(1)  Pleas  in  justification  or  excuse. 

(2)  Pleas  in  discharge.^ 

(1)  Pleas  in  Justification  or  Excuse. 
These  set  forth  some  justification  or  excuse  of  the  matter 
charged  in  the  declaration  ;  their  effect,  therefore,  is  to  show 
that  the  plaintiff  never  had  any  right  of  action,  because  the 
act  charged  was  lawful.  An  example  of  this  class  is  the  plea 
of  son  assault  demesne. 

(2)   Pleas  in  Discharge. 

These  show  some  discharge  or  release  of  the  matter  charged 
in  the  declaration  ;  their  effect  is  to  show  that,  though  the 
plaintiff  once  had  a  right  of  action,  it  is  discharged  or  released 
by  some  subsequent  matter.  An  example  of  this  latter  class 
is  a  release. 

This  division  applies  to  pleas  only  ;  for  replications  and  other 
mhsequent  pleadings  in  confession  and  avoidance  are  not  sub- 
ject to  any  such  classification. 

As  to  i\iQ  form  of  pleadings  in  confession  and  avoidance,  it 

1  Taylor  r.  Needham,  2  Taunt.  278.  to  real  or  personal  representatives,  that 
N.  B.  The  court  there  lay  it  down  that  they  are  in  the  same  situation  with 
the  plea  of  non  concessit,  etc.,  brings  parties,  anA  must  plead  non  est  factum. 
into  issue  the  title  of  the  grantor,  as  (Robinson  ii.  Corbett,  Lutw.  662.  As 
well  as  the  operation  of  the  deed.  to  privies  in  estate,  see  2  Hen.  IV.  20; 

2  In  accordance  with  the  same  doc-  Taylor  v.  Needham,  ubi  supra.) 
trine  of  estoppel,  it  is  held,  with  respect        »  Com.  Dig.  Pleader,  3  M.  12. 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OF   AN   ISSUE.      273 

will  be  sufficient  to  observe  that,  in  common  with  all  pleadings 
whatever  which  do  not  tender  issue,  they  always  conclude  with 
a  verification  and  prayer  of  judgment. 

Color. 

With  respect  to  the  quality  of  these  pleadings,  it  is  a  rule, 
that  every  pleading  by  way  of  confession  and  avoidance  must 
give  color}  This  is  a  rule  which  it  is  very  essential  to  under- ' 
stand,  in  order  to  have  a  correct  apprehension  of  the  nature 
of  these  pleadings  ;  yet  it  appears  to  have  been  not  hitherto 
adequately  explained  or  developed  in  the  books  of  the  science. 

Color  \&  a  term  of  the  ancient  rhetoricians,  and  was  adopted 
at  an  early  period  into  the  language  of  pleading.^  As  a  term, 
of  pleading,  it  signifies  an  apparent  or  prima  facie  right ;  and 
the  meaning  of  the  rule,  that  every  pleading  in  confession  and 
avoidance  must  give  color,  is,  that  it  must  admit  an  apparent 
right  in  the  opposite  party,  and  relv[j  therefore,  on  some  new 
matter  hy  which  that  apparent  right  is  defeated. 

Example :  In  the  case  of  a  plea  of  release  to  an  action  for  breach 
of  covenant,  the  tendency  of  the  plea  is  to  admit  an  apparent  right 
in  the  plaintiff,  viz.,  that  the  defendant  did,  as  alleged  in  the 
declaration,  execute  the  deed  and  break  the  covenant  therein 
contained,  and  would,  thereiove,  prima  facie,  be  chargeable  with 
damages  on  that  ground ;  but  shows  new  matter,  not  before  dis- 
closed, by  which  that  apparent  right  is  done  away  with,  viz.,  that 
the  plaintiff  executed  to  him  a  release.  Again,  if  the  plaintiff 
claims  that  the  release  was  obtained  from  him  by  duress,  he,  in 
his  replication,  impliedly  admits  that  the  defendant  has,  prima 
facie,  a  good  defence,  viz.,  that  such  release  was  executed  as 
alleged  in  the  plea,  and  that  the  defendant,  therefore,  would  be 
apparently  discharged ;  but  he  relies  on  new  matter,  by  which 
the  effect  of  the  plea  is  avoided,  viz.,  that  the  release  was  obtained 
by  duress. 

The  plea  in  this  case,  therefore,  gives  color  to  the  declaration, 
and  the  replication  to  the  plea. 

But  let  it  be  supposed  that  the  plaintiff  had  replied  that  the 
release  was  executed  by  him,  but  to  another  person,  and  not  to 

1  See  Reg.  Plac.  304  ;  Hatton  v.  ^  jj  occurs  at  least  as  early  as  the 
Morse,  3  Salk.  273 ;  Hallet  v.  Byrt,  5  reign  of  FA.  III.  (See  Year-Book,  40 
Mod.  252;  Holler  v.  Bush,  1  Salk.  394.     Ed.  III.  23.) 

18 


274  COMMON-LAW  PLEADING. 

the  defendant ;  this  ■would  be  an  informal  replication,  as  want^ 
ing  color,  because,  if  the  release  were  not  to  the  defendant, 
there  -would  not  exist  even  an  apparent  defence,  requiring  the 
allegation  of  new  matter  to  avoid  it,  and  the  plea  might  be 
sufficiently  answered  by  a  traverse,  denying  that  the  deed 
stated  in  the  plea  is  the  deed  of  the  plaintiff.^ 

Implied  Color. 

The  kind  of  color  to  which  these  observations  relate,  being 
/  a  latent  quality  naturally  inherent  in  the  structure  of  all  reg- 
ular pleadings  in  confession  and  avoidance,  has  been  called 
implied  color,  to  distinguish  it  from  another  kind,  which  is,  in 
some  instances,  formally  inserted  in  the  pleading,  and  is  there- 
fore known  by  the  name  of  express  color.^ 

Express  Color. 

It  is  the  latter  kind  to  which  the  technical  term  most  usually 
applies  ;  and  to  this  the  books  refer  when  color  is  mentioned 
p)er  se,  without  the  distinction  between  express  and  implied. 

Color,  in  this  sense,  is  defined  to  be  "  a  feigned  matter, 
pleaded  hy  the  defendant  in  an  action  of  trespass,  from  ivhich 
the  i^laintiff  seems  to  have  a  good  cause  of  action,  whereas  he 
has,  in  truth,  only  an  appearance  or  color  of  caused  ^ 

This  is  one  of  the  most  curious  subtleties  that  belong  to 
the  science  of  pleading ;  and,  though  now  rather  of  rare  occur- 
rence, yet,  as  it  is  still  sometimes  practised,  and  is,  besides, 
illustrative  of  the  important  doctrine  of  implied  color,  deserves 
attention.     Its  nature  and  use  may  be  thus  explained. 

The  necessity  of  an  implied  color  has  evidently  the  effect  of 
obliging  the  pleader  to  traverse  in  many  instances  in  which  his 
case,  when  fully  stated,  does  not  turn  on  a  mere  denial  of  fact, 
but  involves  some  considerations  of  law.  In  the  example  first 
above  given,  of  want  of  color,  this  would  not  be  so  ;  for,  if  the 

1  See  Gifford  v.  Perkins,  1  Sid.  450,  work,  is  in  substance  the  same  with  the 

where  a  plea  of  this  kind  was  held  to  want  of  color. 

he  had.     The  objection,  indeed,  in  that         ^  Hallet  i<.  Byrt,  5  Mod.  252  ;  Hatton 

case,  took  a  somewhat  different  shape,  v.    Morse,   3    Salk.    273  ;    Reg.    Plac. 

viz.,  that  the  plea  amounted  to  the  general  304. 

issue.     But  this  objection,  as  will  be  ^  Bac.  Ab.  Trespass,  T.  4. 

explained  in  a  subsequent  part  of  the 


EULES  WHICH    TEND   TO   THE   PRODUCTION   OP   AN   ISSUE.      275 

deed  of  release  were  executed  not  to  the  defendant,  but  to  a 
different  person,  this,  of  course,  amounts  to  no  more  than  a 
mere  denial  that  the  deed,  as  alleged  in  the  plea,  is  the  deed 
of  the  plaintiff ;  and  no  question  of  law  can  be  said  to  arise 
under  this  traverse. 

But  a  case  may  easily  be  supposed  in  which  a  point  of  law 
is  involved  in  some  part  of  the  defendant's  title,  which  point 
it  is  desirable  to  so  introduce  in  the  pleading  as  to  enable  a 
demurrer  to  be  interposed  to  it,  and  thus  segregate  it  from  the 
remaining  matters  of  fact. 

If  the  defendant  is  compelled  to  traverse  the  plaintiff's 
declaration,  then,  upon  the  general  issue  so  made  up,  he  must 
prove  his  whole  title,  deducing  it  through  all  its  steps,  and  the 
jury  must  determine  the  law  as  ivell  as  the  facts  involved  therein. 

The  question,  therefore,  for  the  defendant  to  solve  is  this : 
Can  he  by  an  expedient  plead  what  is  really  an  argumentative 
traverse,  as  a  confession  and  avoidance  ?  He  can,  by  resorting 
to  this  device  of  express  color. 

Example:  In  an  action  of  trespass  quare  clausum /regit,  for 
breaking  the  plaintiff's  close,  the  defendant  would  confess  that 
the  plaintiff,  at  the  time  of  the  act  complained  of,  was  in  posses- 
sion of  the  close  in  question,  by  virtue  of  a  parol  demise  for  life 
from  one  Z. ;  but  that  afterwards  (nothing  passing  by  the  parol 
demise  for  life),^  Z.'s  title  became  legally  vested  in  the  defend- 
ant, who  thereupon  entered  upon  the  close  so  in  possession  of  the 
plaintiff ;  which  is  the  same  trespass  complained  of  by  the 
plaintiff. 

In  alleging  his  title  in  the  foregoing  plea,  the  defendant 
would  trace  it  truly  and  minutely  from  Z.,  in  whom  the  plea 
admits  the  title  to  have  been  vested  at  the  time  of  the  parol 
demise  to  the  plaintiff.  Thus,  he  might  aver,  according  as  the 
fact  was,  that  lie  derived  his  title  by  last  will  from  X.,  who  got  it 
hij  deed  from  Y.,  on  whom  it  descended  from  Z.  In  a  word,  lie 
would  set  out  every  link,  including  of  course  the  one  involving 
the  doubtful  point  of  law,  constituting  his  claim  of  title. 

^  The  defect   in  the  title,  given  by  been  accompanied   by  liver]/  of  seisin. 

this  color,  is,  that  the  parol  demise,  or  It   is   therefore   void.      (Doct.   PI.    73, 

charter  for  life,   is  not  pleaded  as  a  Leyfield's  Case,  10  Co.  Rep.  89  b.) 
feoffment,  and  does  not  appear  to  have 


276  COMMON-LAW   PLEADING. 

Now  the  plaintiff  must  meet  this  plea.  If  he  mean  to 
contest  the  point  of  law  involved,  he  must  demur  to  the 
plea,  when  the  legal  question  thus  segregated  will  be  argued 
to  the  court.  If,  on  the  other  hand,  he  mean  to  controvert 
the  facts  of  the  title,  he  must  reply ;  and,  in  replying,  he 
must  select  for  attack  some  one  of  the  links  of  title  in  the 
defendant's  chain,  and  must  admit  the  validity  of  all  the  rest, 
thus  separating  the  facts  from  the  law,  and  obliging  the 
defendant  to  prove  one  only  of  the  facts  of  title  instead  of  all 
of  them.^ 

The  student  will  be  aided  by  contrasting  a  common  traverse 
with  a  traverse  converted,  by  this  expedient,  into  a  plea  by 
confession  and  avoidance  with  express  color. 

By  Confession  and  Avoidance 
By  Way  of  Traverse.  with  Express  Color. 

Pltff.  Defendant  broke  my  Pltff.  Defendant  broke  my 
close,  to  my  damage  of  $1,000.     close,  to  my  damage  of  $1,000. 

Dfdt.  Not  guilty,  and  issue  Dfdt.  One  Z.  was  seised  of 
tendered.  the  close  iu  question,  and  before 

Pltff.   Issue  joined.  the  alleged  trespass,  by  convey- 

ance duly  executed,  transferred 
the  land  to  Y.  in  fee,  from  whom 
it  lawfully  descended  to  the  de- 
fendant as  his  son  and  heir. 
And  the  plaintiff  claiming  the 
said  close  by  color  of  a  ixirol 
demise  for  his  life,  by  the  said 
Z.  made  to  him  long  before  the 
t  conveyance  aforesaid   by  Z.  to 

Y.,  entered  on  the  premises,  and 
was  possessed  of  the  same ;  and 
the  defendant  afterwards  en- 
tered upon  the  plaintiff's  pos- 
session as  lawfully  he  might, 
and  that  is  the  trespass  com- 
plained of. 

Pltff.    Defendant   is  not  son 
and  heir  to  Y.,  and  issue  ten- 
dered. 
Bfdt.  Issue  accepted. 

1  Min.  Inst.  IV.  650,  65L 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OP   AN  ISSUE.      277 

By  pleading  thus  by  way  of  confession  and  avoidance,  the 
defendant  gains  these  several  advantages :  (1)  He  spreads 
his  title  on  the  record,  and  obliges  the  plaintiff,  if  he  regards 
it  as  not  a  lawful  title  as  thus  exhibited,  to  demur  and  present 
the  question  to  the  court,  instead  of  its  going  mixed  with  all 
the  facts  to  the  jury,  as  it  might  have  done  upon  the  plea  by 
way  of  traverse. 

(2)  He  obliges  the  plaintiff  to  traverse  or  attack  but  one  of 
the  links  in  the  defendant's  chain  of  title ;  and  thus,  by  the 
rules  of  pleading,  to  admit  all  the  other  links  as  good. 

(3)  He  gains,  according  to  the  English  practice,  the  affirm- 
ative of  the  issue,  and,  hence,  the  opening  and  conclusion  of 
the  cause.i 

The  most  abstruse  points  of  law  might  be  presented  in 
this  way  by  the  pleadings,  so  that  a  demurrer  could  segre- 
gate them  from  the  surrounding  facts.  Thus,  the  example 
given  by  Stephen,  upon  this  head,  presents  the  legal  question 
whether  or  not  continued  claim  of  title  by  a  disseisee  will 
preserve  in  him  the  right  of  entry  upon  the  premises  in 
dispute,  notwithstanding  a  descent  cast  on  the  heir  of  the 
disseisor.2 

It  is  to  be  understood  that,  when  color  was  thus  given,  the 
plaintiff  was  not  allowed,  in  his  replication,  to  traverse  the 
fictitious  matter  suggested  by  way  of  color  ;3  for,  its  only 
object  being  to  prevent  a  difficulty  of  form,  such  traverse 
would  be  wholly  foreign  to  the  merits  of  the  cause,  and  would 
only  serve  to  frustrate  the  fiction  which  the  law  in  such 
case  allows.  The  plaintiff  would,  therefore, .  pass  over  the 
color  without  notice,  and  either  traverse  the  title  of  the 
defendants,  if  he  meant  to  contest  its  truth  in  point  of  fact, 
or  demur  to  it,  if  he  meant  to  except  to  its  sufficiency  in  point 
of  law  ;  and  thus  the  defendants  would  obtain  their  object,  of 
bringing  any  legal  question  raised  upon  their  title  under  con- 
sideration of  the  court,  and  withdrawing  it  from  the  jury. 

The  practice  of  giving  express  color  obtained  in  the  mixed 
actions  called  an  assize,  and  the  writ  of  entry  in  nature  of  an 

1  Min.  Inst.  IV.  910,  911.  8  Chit.  PI.  445. 

2  Co.  Litt.  250,  a,  b;  BI.  Com.  III.  175*. 


278  COMMON-LAW  PLEADING. 

assize^  and  the  personal  action  of  trespass}  The  two  former 
kinds  of  proceeding  being  now  out  of  use,  it  occurs  at  present 
in  the  action  of  trespass  only,  nor  is  it,  even  in  trespass,  often 
found  to  be  expedient.  As  the  practice  of  giving  express  color 
seems  to  be  confined  to  these  actions,  so  also  it  is  restrained  to 
pleas,  and  does  not  extend  to  replications  or  other  subsequent 
pleadings.'"^  It  is  also  to  be  understood,  with  respect  to  giving 
express  color,  that  though,  originally,  various  suggestions  of 
apparent  right  might  be  adopted,  according  to  the  fancy  of  the 
pleader,^  and  though  the  same  latitude  is,  perhaps,  still  allow- 
able, yet,  in  practice,  it  is  unusual  to  resort  to  any  except  certain 
known  fictions  which  long  usage  has  applied  to  the  particular 
case.  Thus,  in  trespass  to  land,  the  color  universally  given 
is  that  of  a  defective  charter  of  demise,  as  in  the  above 
example. 

There  are  some   rules,  with  respect  to  express  color,  im- 
mediately resulting  from  the  nature  of  the  fiction  and  the 
object  for  which  it  is  adopted.     Thus,  it  is  laid  down  that,  it 
must  consist  of  such  matters  as,  if  it  were   effectual,  would 
iirimntain  the  nature  of  the  action } 

Example :  In  an  action  of  assize,  where  the  demandant  com- 
plains of  a  disseisin  of  his  freehold,  the  tenant  should  not,  by 
way  of  giving  color,  suggest  a  demise  to  the  demandant  for  years, 
because  this  would  not  give  him  even  a  colorable  ground  to  main- 
tain an  assize.^ 

On  the  other  hand,  it  is  to  be  observed  that  the  right  sug- 
gested must  be  colorable  only,  and  that  it  must  not  amount  to 
a  real  or  actual  right.  For,  if  it  does,  then  the  plaintiff  would, 
of  course,  upon  the  defendant's  own  showing,  be  entitled  to 
recover,  and  the  plea  would  be  an  insufficient  answer. 

Example :  In  trespass  for  taking  away  one  hundred  loads  of 
wood,  if  the  defendant  pleads  that  I.  S.  was  possessed  of  them 
ut  de  bonis  propriis  (as  of  his  own  goods),  and  the  plaintiff,  claim- 

1  Doct.   &   Stud.  271.    But  see  an         s  Eeeves' Hist.  IIL  629. 
example   of  express    color   in    trover,  *  Bac.  Ab.   Pleas,  &c.  L  8 ;    Com. 
Morant  v.  Sign,  5  Dowl.  319.  Dig.  Pleader,  3  M.  41. 

2  Chit.  PI.  541.    And  see  Taylor  v.         ^  Anon.  Keilw.  103  b. 
Eastwood,  1  East.  212. 


RULES   WHICH   TEND  TO   THE   PRODUCTION   OP   AN   ISSUE.      279 

ing  them  hy  color  of  a  deed  of  gift  by  the  said  I.  S.  afterwards 
made,  took  them,  and  then  the  defendant  retook  them,  the  plea 
is  bad  ;  for  if  the  plaintiff  took  possession  of  the  goods  under  a 
deed  of  gift  from  the  lawful  owner,  he  has  a  good  title  to  them, 
and  ought  to  recover.^ 

So,  in  the  example  of  color  before  given,  it  would  be  bad 
pleading,  if,  instead  of  alleging  that  the  plaintiff  claimed  by 
color  of  a  certain  charter  of  demise  for  the  term  of  his  life,  etc., 
it  were  alleged  that  he  claimed  by  color  of  a  certain  feoffment 
for  the  term  of  his  life ;  for  in  the  word  feoffment  the  law 
intends  not  only  the  charter  of  demise,  but  the  delivery  of 
seisin  also  ;  and  the  title  allowed  to  the  plaintiff  would,  there- 
fore, not  be  defective  or  colorable,  but  valid.^, 

There  are  other  rules  relating  to  express  color,^  but  as  they 
seem,  on  examination,  to  be  either  resolvable  into  the  same 
principles  that  have  been  already  considered,  or,  where  this  is 
not  the  case,  to  be  obscure  and  unimportant,  they  need  not  be 
here  discussed. 

The  pleadings  by  way  of  traverse^  and  those  by  way  of  con- 
fession and  avoidance^  having  been  now  separately  considered, 
there  are  yet  to  be  noticed  : 

(C)  The  Nature  and  Properties  of  Pleadings  in  General. 

We  shall  now  consider  the  nature  and  properties  of  plead- 
ings in  general,  without  reference  to  their  quality,  as  being  by 
way  of  traverse  or  confession  and  avoidance.  The  rules  on 
this  subject  are  the  following :  — 

(1)  Every  Pleading  must  be  an  Answer  to  the  whole  op 
WHAT  is  Adversely  Alleged.* 

Example  :  In  an  action  of  trespass  for  breaking  a  close  and 
cutting  down  three  hundred  trees,  if  the  defendant  pleads,  as  to 
cutting  down  all  but  two  hundred  trees,  some  matter  of  justifica- 
tion or  title,  and  as  to  the  two  hundred  trees  says  nothing,  the 

1  Radford  v.  Harbyn,  Cro.  Jac.  122.  *  Com.  Dig.  Pleader,  E.  1,  F.  4;  I 

'^  Doct.  PI.  73.  Saund.  28,  n.  3 ;  Herlakeudeu's  Case,  4 

3  See  Com.  Dig.  Pleader,  3  M.  40,  Co.  Rep.  62  a. 
3  M.  41. 


280  COMMON-LAW  PLEADING. 

plaintiff  is  entitled  to  sign  judgment,  as  by  nil  dicit,  against  him 
in  respect  of  the  two  hundred  trees,  and  to  demur  or  reply  to 
the  plea  as  to  the  remainder  of  the  trespasses.^ 

Ill  such  cases  the  plaintiff  should  take  care  to  avail  himself 
of  his  advantage  by  this  (which  is  the  only  proper)  course ; 
for  if  he  demurs  or  replies  to  the  plea,  without  signing  judg- 
ment for  the  part  not  answered,  the  whole  action  is  said 
to  be  discontinued.^  The  principle  of  this  is,  that  the  plain- 
tiff, by  not  taking  judgment,  as  he  was  entitled  to  do  for  the 
part  unanswered,  does  not  follow  up  his  entire  demand,  and 
there  is  consequently  that  sort  of  chasm  or  interruption  in 
the  proceedings  which  is  called  in  the  technical  phrase  a  dis- 
contimcance  ;  ^  and  such  discontinuance  will  amount  to  error 
on  the  record.* 

It  is  to  be  observed,  however,  that  as  to  the  plaintiff's  course 
of  proceeding,  there  is  a  distinction  between  a  case  like  this, 
where  the  defendant  does  not  profess  to  answer  the  whole,  and 
a  case  where,  by  the  commencement  of  his  plea,  he  professes 
to  do  so,  but  in  fact  gives  a  defective  and  partial  answer, 
applying  to  part  only.  The  latter  case  amounts  merely  to 
insufficient  pleading;  and  the  plaintiff's  course  therefore  is 
not  to  sign  judgment  for  the  part  defectively  answered,  but 
to  demur  to  the  whole  plea.-^ 

It  is  also  to  be  observed,  that  where  the  part  of  the  plead- 
ing to  which  no  answer  is  given  is  immaterial,  or  such  as  re- 
quires no  separate  or  specific  answer  —  for  example,  if  it  be 
mere  matter  of  aggravation  —  the  rule  does  not  in  that  case 
apply.6 

1  Henry  v.  Earl,  8  M.  &  "W.  228.  discontinuance.     Besides  the  example 

2  Com.  Dig.  Pleader,  E.  1,  F.  4;  1  in  the  text,  see  another  in  Tippet  r. 
Saund.  28,  n.  3;    Herlakenden's  Case,    May,  1  Bos.  &  Pul.  411. 

4Co.  Rep.  62  a;  Morley  ?-. ,  12  Mod.         *  "Wats  v.  King,  Cro.  Jac.  353.     A 

421 ;    Vincent   v.  Beston,  1  Ld.  Eaym.  discontinuance    is   cured,   hoicever,   after 

716;  ^larket  r.  Johnson,  1  Salk.  180.  verdict,    by  the  statute  of  jeofails,    32 

^  The  proper  and  original  meaning  H.  VIII.  c.  30 ;  and  after  judgment  by 

of  a  discontinuance  has  been  explained,  nil  dicit,  confession,  or  non  sum   infor- 

By  analogy  to  this,  whenever  a  suit  is  matus,  by  4  Ann.  c.  16. 
not  regularly  carried  on  from  its  com-         ^  1    Saund.    28,    n.    3 ;    Thomas   v. 

mencement   to    its    conclusion,   but    a  Heathorn,  2  Barn.  &  Cress.  477 ;   Earl 

chasm  of  any  kind,  either  in  the  pro-  of  St.  Germains  v.  Willan,  ibid.  216. 
cess  or  pleading,  occurs,  there  is  also  a         ^1  Saund.  28,  n.  3. 


rules  which  tend  to  the  peoduction  of  an  issue.    281 

(2)  Every  Pleading  is  taken  to  Confess  such  Travers- 
able Matters  alleged  on  the  Other  Side  as  it 
does  not  Traverse.^ 

Thus,  in  the  example  given  of  an  action  on  an  indenture  of 
covenant,  the  plea  of  release,  as  it  does  not  traverse  the  inden- 
ture, is  taken  to  admit  its  execution ;  and  the  replication  of 
duress,  on  the  same  principle,  is  an  admission  of  the  execution 
of  the  release.  The  effect  of  such  admission  is  extremely 
strong,  for,  first,  it  concludes  the  party,  even  though  the 
jury  should  improperly  go  out  of  the  issue  and  find  the 
contrary  of  what  is  thus  confessed  on  the  record,^  and,  in 
the  next  place,  the  confession  operates  not  only  to  prevent 
the  fact  from  being  afterward  brought  into  question  in  the 
same  suit,  but  is  equally  conclusive  as  to  the  truth  of  that 
fact  in  any  subsequent  action  between  the  same  parties.  The 
rule,  however  (it  will  be  observed),  extends  only  to  such 
matters  as  are  traversable ;  for  matters  of  law,  or  any  other 
matters  which  are  not  fit  subjects  of  traverse,  are  not  taken 
to  be  admitted  by  pleading  over.^ 

Protestation. 

It  is  this  rule  which  has  given  rise  to  the  practice  of  pro- 
testation in  pleading.4  When  the  pleader  passes  over,  without 
traverse,  any  traversable  fact  alleged,  and,  at  the  same  time, 
wishes  to  preserve  the  power  of  denying  it  in  another  action,  he 
makes,  collaterally  or  incidentally  to  his  main  pleading,  a 
declaration,  importing  that  this  fact  is  untrue ;  and  this  is 
called  a  protestation,  and  it  has  the  effect  of  enabling  the  party 
to  dispute,  in  another  action,  the  fact  so  passed  over.^  It  is 
wholly  without  avail  in  the  action  in  which  it  occurs  ;  and,  under 
the  rule  already  laid  down,  every  traversable  fact  not  traversed 

1  Com.  Dig.  Pleader,  G.  2;  Bac.Ab.  »  10  Ed.  IV.  12;  The  King  v.  The 

Pleas,    &c.   322,    386,    5th    ed. ;    Hud-  Bishop  of  Chester,  2  Salk.  .561. 

son  V.  Jones,  1  Salk.  91  ;  Nicholson  v.  *  Bac.  Ab.  Plea.s,  &c.  386,  n.  a,  5th 

Simpson,  Port.  556.  ed. 

■-'  Bac.     Ab.    Pleas,    &c.    322,     5th  6  Com.  Dig.  Pleader,  N. ;  Co.  Litt. 

ed. ;    Wilcox  v.    Servant  of   Skipwith,  124  b;  2  Saund.  103  a,  n.  1  ;  17  Ed.  II. 

2  Mod.  4.  534;  43  Ed.  IIL  17;  40  Ed.  III.  17,46; 

48  Ed.  III.  11. 


\ 


282  COMMON-LAW   PLEADING. 

^  is,  notwithstanding  the  protestation,  to  be  taken  as  admitted 
in  the  existing  suit. 

It  is  also  a  rule,  that  if  upon  the  traverse  the  issue  be 
found  against  the  party  protesting,  the  protestation  does  not 
avail ;  and  that  it  is  of  no  use  except  in  the  event  of  the  issue  be- 
ing determined  in  his  favor  ;  with  this  exception,  however,  that 
if  the  matter  taken  by  protestation  be  such  as  the  pleader  could 
not  have  taken  issue  upon,  the  protestation  in  that  case  shall 
avail,  even  though  the  issue  taken  were  decided  against  him.^ 

A  protestation  ought  not  to  be  repugnant  to  the  pleading 

hieh  it  accompanies^  nor  ought  it  to  be  taken  on  such  matter 
s  the  pleading  itself  traverses.^ 

The  rules,  however,  with  respect  to  the  form  of  a  protesta- 
tion, become  the  less  material,  because  it  has  been  decided 
f  that  neither  a  superfluous  nor  repugnant  protestation  is  suffi- 
cient ground  for  demurrer  ;  *  the  protestation  itself  having  in 
view  ariother  suit  only,  and  its  faults  of  form  being:,  therefore, 
V  immaterial  in  the  present  action. 

It  has  been  already  observed,  ^at  the  necessity  of  the  pro- 
testation arises  from  the  rule,  "  that  every  traversable  fact  not 
traversed  is  confessed."  But  it  has  been  seen  that  an  answer 
in  fact  is  no  admission  of  the  sufficiency  in  point  of  law  of  the 
matter  answered.  It  follows,  therefore,  that  it  is  not  necessary, 
in  passing  over  an  insufficient  pleading  without  demurrer,  and 
answering  in  point  of  fact,  to  make  any  protestation  of  the 
insufficiency  in  law,  of  such  pleading  ;  for,  even  without  Lhe 
protestation,  no  implied  admission  of  its  sufficiency  arises.  In 
practice,  however,  it  is  not  unusual,  in  such  case,  to  make  a 
protestation  of  insufficiency  in  law,  the  form  having  apparently 
been  adopted  by  analogy  to  the  proper  kind  of  protestation, 
viz.,  that  against  the  truth  of  a  fact. 

I  Such  are  the  doctrines  involved  in  the  general  rule,  that 
the  party  must  demur,  or  plead  either  by  way  of  traverse,  or 
by  way  of  confession  and  avoidance. 

1  See  2  Saund.  103  a,  n.  1,  for  further         3  Com.  Dig.  Pleader,  N. 
explanation  on  this  subject.  *  Com.  Dig.  and  Saund.  uhi  supra. 

2  Com.  Dig.  Pleader,  N;  2  Saund. 
ubi  supra. 


RULES   WHICH   TEND   TO   THE  PRODUCTION  OP   AN   ISSUE.      283 

Exceptions  to  Rule  I. 

We  must  recur  now  to  the  exceptions  already  noted  to  the 
main  rule,  which  requires  a  party  to  plead  either  by  way  of 
traverse  or  by  way  of  confession  and  avoidance. 

(1)  Where  a  Dilatory  Plea  is  interposed. 

There  is  an  exception  in  the  case  of  dilatory  pleas,  for  a  plea 
of  this  kind  merely  opposes  a  matter  of  form  to  the  decla- 
ration^jjid  dpes-uot  tend  either  to  deny  or  to  confess  its 


allegations. 

But  replications  and  subsequent  pleadings,  following  on 
dilatory  pleas,  are  not  within  this  exception. 

(2)  Pleadings  in  Estoppel. 

These  are  pleadings  which,  without  confessing  or  denying 
the  matter  of  fact  adversely  alleged,  rely  merely  on  some 
matter  of  estoppel,  as  a  ground  for  excluding  the  opposite 
party  from  the  allegation  of  the  fact,  and,  after  stating  the 
previous  acL-allegation.,  or  denial,  on  which  the  estoppel  is 
Ruj>pospf]  to  nrisp!^  PT^J  judgment  if  he  shall  he  received  qf 
admitted  to  aver  contrary  to  what  he  before  did  or  said. 

(3)  Where  a  New  Assignment  is  Necessary. 

Another  exception  to  that  branch  of  the  general  rule,  which 
requires  the  pleader  either  to  traverse,  or  confess  and  avoid, 
arises  in  the  case  of  what  is  called  a  new  assignment. 

It  has  been  seen  that  the  declarations  are  conceived  in  very 
general  terms ;  a  quality  which  they  derive  from  their  adhe- 
rence to  the  tenor  of  those  simple  and  abstract  formuloe,  the 
original  writs.  The  effect  of  this  is,  that,  in  some  cases,  the 
defendant 'is  not  sufficiently  guided  by  the  declaration  to  the 
real  cause  of  complaint,  and  is,  therefore,  led  to  apply  his  plea 
to  a  different  matter  from  that  which  the  plaintiff  has  in  view. 
A  new  assignmentis  a  method  of  pleading  to  which  the  plajn- 
tiff  in  such  cases  is  obliged  to  resort  m  his  replication,  for  the 
purpose  of  setting  the  defendanl;  right. 


284  COMMON-LAW  PLEADING. 

Example:  In  an  action  for  assault  and  battery,  a  case  may 
occur  in  which  the  plaintiff  has  been  twice  assaulted  by  the  de- 
fendant ;  and  one  of  these  assaults  may  have  been  justifiable, 
being  committed  in  self-defence,  while  the  other  may  have  been 
committed  without  legal  excuse.  Supposing  the  plaintiff  to  bring 
his  action  for  the  latter,  it  will  be  found,  by  referring  to  the  ex- 
ample formerly  given,  of  declaration  for  assault  and  battery,  that 
the  statement  is  so  general  as  not  to  indicate  to  which  of  the  two 
assaults  the  plaintiff  means  to  refer.^  The  defendant  may,  there- 
fore, suppose,  or  affect  to  suppose,  that  the  first  is  the  assault 
intended,  and  will  plead  son  assault  demesne.  This  plea  the 
plaintiff  can  not  safely  traverse ;  because,  as  an  assault  was  in 
fact  committed  by  the  defendant  under  the  circumstances  of  ex- 
cuse here  alleged,  the  defendant  would  have  a  right,  under  the 
issue  joined  upon  such  traverse,  to  prove  those  circumstances, 
and  to  presume  that  such  assault,  and  no  other,  is  the  cause  of 
action.  And  it  is  evidently  reasonable  that  he  should  have  this 
right ;  for  if  the  plaintiff  were,  at  the  trial  of  the  issue,  to  be 
allowed  to  set  up  a  different  assault,  the  defendant  might  suffer, 
by  a  mistake  into  which  he  had  been  led  by  the  generality  of  the 
plaintiff's  declaration.  The  plaintiff,  therefore,  in  the  case  sup- 
posed, not  being  able  safely  to  traverse,  and  having  no  ground 
either  for  demurrer  or  for  pleading  in  confession  and  avoidance, 
has  no  course  but,  by  a  new  pleading,  to  correct  the  mistake  oc- 
casioned by  the  generality  of  the  declaration,  and  to  declare  that 
he  brought  his  action,  not  for  the  first,  but  for  the  second  assault ; 
and  this  is  called  a  new  assignment.^ 

The  mistake  being  thus  set  right  by  the  new  assignment, 
it  remains  for  the  defendant  to  plead  such  matter  as  he  may 
have  in  answer  to  the  assault  last  mentioned,  the  first  being 
now  out  of  the  question. 

By  way  of  further  example,  may  be  mentioned  a  case  that 
arises  in  trespass  quare  clausum  fregit,  and  was  formerly  of  very 

1  As  for  the  day  and  place  alleged  ^  jje  may  guard  himself,  by  antici- 

in  the  declaration  (which  may  be  sup-  pation,   against   this   necessity,   in   the 

posed  sufficient,  in  general,  to  identify  particular  case  supposed,  by  charging 

the  assault  referred  to),  it  will  be  shown  the  defendant  in  the  declaration  with 

hereafter  that  they  are  not  considered  both  the  assaults,  which  (in  the  form  of 

as  generally  material  to  be  proved  in  different  counts)  is  allowable.     If  both 

such    a    case,    and    are    consequently  assaults  are  thus  charged,  the  defendant 

alleged   without   much   regard    to  the  of  course  must  answer  both  in  his  plea, 

true  state  of  fact.  and  the  reason  for  the  new  assignment 

fails. 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OP   AN   ISSUE.      285 


frequent  and  ordinary  occurrence.  In  this  action,  if  the  plaintiff 
declares  for  breaking  his  close  in  a  certain  parish,  without  naming 
or  otherwise  describing  the  close  (a  course  which  in  point  of 
pleading  is  allowable),^  if  the  defendant  happen  to  have  any  free- 
hold land  in  the  same  parish,  he  may  be  supposed  to  mistake  the 
close  in  question  for  his  own,  and  may  therefore  plead  what  is 
called  the  common  bar,^  viz.,  that  the  close  in  which  the  trespass 
was  committed  is  his  own  freehold.^  And  then,  upon  the 
principle  already  explained,  it  will  be  necessary  for  the  plaintiff 
to  new-assign,  alleging  that  he  brought  his  action  in  respect 
of  a  different  close  from  that  claimed  by  the  defendant  as  his 
freehold.^ 

New  Assignment  Extra  Yiam. 

The  examples  that  have  been  given  consist  of  cases  where 
the  defendant  in  his  plea  wholly  mistakes  the  subject  of  com- 
plaint. But  it  may  also  happen  that  the  plea  correctly  applies 
to  part  of  the  injuries,  while,  owing  to  a  misapprehension 
occasioned  by  the  generality  of  the  statement  in  the  declara- 
tion, it  fails  to  cover  the  whole. 


1  Martini?.  Kesterton,  2  W.Bla.  1089. 

2  "  It  was  anciently  the  most  usual 
practice  in  trespass  quare  clausum  f regit, 
to  declare  generally  of  breaking  the 
plaintiff's  close  at  A.  This  general 
mode  of  declaring  put  the  defendant 
under  a  difficulty  of  knowing  in  what 
part  of  the  vill  of  A.  the  trespass  which 
the  plaintiff  meant  by  his  declaration 
was  committed.  The  defendant  was 
therefore  permitted  to  plead  that  the 
close  was  his  freehold,  which  he  might 
do  without  giving  it  a  name,  because  as 
the  plaintiff  was  general  in  his  count, 
the  defendant  might  be  as  general  in 
his  plea.  And  if  the  plaintiff  traversed 
it  —  as  he  unquestionably  might  (6  Mod. 
119)  —  he  ran  a  great  risk;  for  if  the 
defendant  had  any  part  of  his  land  in 
tliat  vill,  the  verdict  would  be  for  him 
on  that  issue.  This  turned  the  difficulty 
upon  the  plaintiff,  and  therefore  he  was 
almost  always  driven  to  a  new  assign- 
ment, in  which  he  ascertained  the  place 
with  proper  exactness.  .  .  .  This  general 
plea  of  freehold  is  usually  called  the  com- 
mon bar,  and  sometimes  the    general 


issue."  Greene  v.  Jones,  1  Saund.  299  b, 
297  c,  n.  6. 

3  In  the  common  bar,  it  seems  that 
the  defendant  is  not  bound  to  name 
his  close.  (1  Saund.  299  b,  n.  5  ;  Elwis 
V.  Lombe,  6  Mod.  117;  s.  c.  Salk.  453, 
sed.  q  u.?  ( but  it  is  doubtful ).  SeeCocker 
V.  Crompton,  1  Barn.  &  Cress.  489 ;  and 
Martin  v.  Kesterton,  ubi  supra. 

*  See  examples,  Baldwin's  Case,  2  Co. 
Rep.  18.  But  if  the  plaintiff  has  named 
his  close  in  the  declaration,  the  plea  of 
freehold  does  not  drive  him  to  new- 
assign,  though  the  defendant  may  have 
another  close  of  the  same  name  in  the 
same  parish ;  unless,  at  least,  the  de- 
fendant, in  his  plea,  describes  his  close 
by  its  abuttals.  (Cocker  v.  Crompton, 
ubi  supra ;  and  see  Lethbridge  v.  Winter, 
2  Bing.  49.)  And  on  the  subject  of  the 
common  bar  generally,  see  1  Saund. 
299  b,  n.  5 ;  Martin  v.  Kesterton,  ubi 
supra ;  Ilawke  v.  Bacon,  2  Taunt.  1 56. 

N.  B.  —  In  order  to  avoid  the  prolixity 
of  the  common  bar  and  new  assignment, 
it  is  now  usual  to  name  the  close  in  the 
declaration. 


286  COMMON-LAW   PLEADING. 

Exaviple  :  In  trespass  quare  clausum  f regit,  for  repeated  tres- 
passes, the  declaration  usually  states,  that  the  defendant,  on 
divers  days  and  times  before  the  commencement  of  the  suit,  broke 
and  entered  the  plaintiff's  close,  and  trod  down  the  soil,  &c.. 
without  setting  forth,  more  specifically,  in  what  parts  of  the  close 
or  on  what  occasions  the  defendant  trespassed.-^  Now,  the  case 
may  be,  that  the  defendant  claims  a  right  of  way  over  a  certain 
part  of  the  close,  and,  in  exercise  of  that  right,  has  repeatedly 
entered  and  walked  over  it ;  but  has  also  entered  and  trod  down 
the  soil,  &c.,  on  other  occasions,  and  in  parts  out  of  the  supposed 
line  of  way  ;  and  the  plaintiff,  not  admitting  the  right  claimed, 
may  have  intended  to  point  his  action  both  to  the  one  set  of 
trespasses  and  to  the  other.  But,  from  the  generality  of  the 
declaration,  the  defendant  is  entitled  to  suppose  that  it  refers 
only  to  his  entering  and  walking  in  the  line  of  way.  He  may, 
therefore,  in  his  plea  allege,  as  a  complete  answer  to  the  whole 
complaint,  that  he  has  a  right  of  way  by  grant,  &c.,  over  the  said 
close ;  and  if  he  does  this,  and  the  plaintiff  confines  himself  in 
his  replication  to  a  traverse  of  that  plea,  and  the  defendant  at 
the  trial  proves  a  right  of  way  as  alleged,  the  plaintiff  would  be 
precluded  (upon  the  principle  already  explained)  from  giving 
evidence  of  any  trespasses  committed  out  of  the  line  or  track  in 
which  the  defendant  should  thus  appear  entitled  to  pass. 

Tbp^jilaintifF'H  fQurse  of  pleading  in  such  a  case,  tbere- 
'  fore,  is,  both  Jo  traverse  the  plea  and  also  to  new-assign,  by 
alleging  that  he  brought  his  action  not  only  for  those  tres- 
passes  supposed  by  the  defendant,  but  for  others,  committed 
on  other  occasions  and  in  other  parts  of  the  close,  out  of  the 
supposed  way,  which  is  usually  called  a  new  assignment  extra 
viam  ront  of  thpway)  ;  or,  if  he  means  to  admit  the  right  of 
WM-,  be  may  new-assign  simply,  without  the  traverse.^ 

As  the  object  of  a  new  assignment  is  to  correct  a  mistake 
occasioned  by  the  generality  of  the  declaration,  it  always  occurs 
in  answer  to  a  plea,  and  is  therefore  in  the  nature  of  a  repli- 
eatimi.  It  is  not  used  in  any  other  part  of  the  pleading 
because  the  statements  subsequent  to  the  declaration  are  not, 
in  their  nature,  such,  when  properly  framed,  as  to  give  rise  to 
the  kiiid  of  mistake  which  requires  to  be  corrected  by  a  new 
assignment. 

^  See  an  example,  9  Went.  97.  2  gge  examples  of  a  new  assignment 

extra  viam,  9  Went.  323,  396. 


RULES   WHICH   TEND   TO   THE   PRODUCTION   OF   AN  ISSUE.      287 

A  new  assignment  chiefly  occurs  in  an  action  of  trespass^ 
but  it  seems  to  be  g^enerally  allowed  in  all  actions  in  which 
the  form  of  declaration  makes  the  reason  of  the  practice 
equally  applicable.^ 

Several  new  assignments  may  occur  in  the  course  of  the 
same  series  of  pleading.  Thus,  in  the  first  of  the  above 
examples,  if  it  be  supposed  ih^it.  three  different  assaults  had 
been  committed,  two  of  which  were  justifiable,  the  defendant 
might  plead,  as  above,  to  the  declaration,  and  then,  by  way 
of  plea  to  the  new  assignment,  he  might  again  justify,  in  the 
same  manner,  another  assault ;  upon  which  it  would  become 
necessary  for  the  plaintiff  to  new-assign  a  third,  and  this 
upon  the  same  principle  by  which  the  first  new  assignment 
was  required.^ 

A  new  assignment  is  said  to  be  in  the  nature  of  a  new 
declaration.^  It  seems,  however,  to  be  more  properly  con- 
sidered as  a  repetition  of  the  declaration,  differing  onl^  in 
this,  that  it  distinguishes  the  true  ground  of  complaint  as 
being  different  from  that  which  is  covered  by  the  plea.  Being 
in  the  nature  of  a  new  or  repeated  declaration,  it  is  conse- 
quently to  be  framed  with  as  much  certainty  or  specification 
oj^cjrcuinstances  as  the  declaration  itself.  In  some  cases, 
indeed,  it  should  be  even  more  particular,  so  as  to  avoid  the 
necessity  of  another  new  assignment.  Thus,  if  the  plaintiff 
declares  in  trespass  quare  clausum  /regit  without  naming  the 
close,  and  the  defendant  pleads  the  common  bar,  which,  as 
we  have  seen,  obliges  the  plaintiff  to  new-assign,  he  must, 
in  his  new  assignment,  either  give  his  close  its  name  or 
otherwise  sufficiently  describe  it,^  though  such  name  or  de- 
scription was  not  required  in  the  declaration.^ 

1  Chit.  PI.  543;  Vin.  Ab.  Novel  Hunt,  11  East.  451  ;  Cheasleyr.  Barnes, 
Assignment,  4,  5  ;  3  "Went.  151  ;  Batt  10  Ea.st.  73;  Taylor  v.  .Smith,  7  Taunt. 
V.  Bradley,  Cro.  Jac.  141.  156;  Taylor  v.  Cole,  3  T.  E.  292 ;  Lam- 

2  Chit.  PI.  544  ;  I  Saund.  299  c.  bert  v.  Prince,  1  Biug.  317  ;  Phillijjs  v. 

3  Bac.  Ab.  Trespass  (1),  4,  2  ;  1  Howgate,  5  Barn.  &  Aid.  220.  Some  of 
Saund.  299  c.  these  cases  will  be  found  to  involve  nice 

*  Semh.  (it  seems)  T)y.  264  a ;  Com.  distinctions  as  to  the  necessity,  in  par- 
Dig.  Pleader,  3  M.  34.  (See  an  example,  ticular  instances,  of  a  new  assignment. 
9  Went.  187.)  See  specially,  Huddart  v.  Rigby,  5  L. 

^  On  the  subject  of  new  assignment,  K.  Q.  B.  139,  and  Ellison  v.  Isles,  11 

see  1    Saund.   299  a,  n.  6 ;    Barnes  v.  Ad.  &  E.  665. 


28»  COMMON-LAW   PLEADING. 

The  rule  under  consideration  and  its  exceptions^  being  now 
discussed,  the  last  point  of  remark  relates  to  an  inference  or 
deduction  to  which  it  gives  rise. 

It  is  implied  in  this  rule,  that  as  the  proceeding  must  he 
hy  demurrer^  traverse,  or  confessioti  and  avoidance,  so  any 

OF  THESE   FORMS   OF   OPPOSITION   TO   THE   LAST    PLEADING   IS   IN 
ITSELF   SUFFICIENT. 

^  There  is,  however,  an  exception  to  this  in  a  case  which  the 
books  consider  as  anomalous  and  solitary.     It  is  as  follows  : 

If  in  debt  on  a  bond,  conditioned  for  the  performance  of  an 
award,  the  defendant  pleads  that  no  award  was  made,  and  the 
plaintiff,  in  reply,  alleges  that  an  award  was  made,  setting  it 
forth,  it  is  held  that  he  must  also  proceed  to  state  a  breach 
of  the  award,  and  that  without  stating  such  breach  the  repli- 
cation is  insufficient.^ 

"  The  reason  was,  because  an  award  may  be  good  in  one 
part,  and  void  in  another ;  and  therefore  it  is  incumbent  upon 
the  plaintiff  to  show  a  breach  thereof,  that  the  court  may 
judge  whether  he  has  well  conceived  his  action  or  not ;  for 
perhaps  he  has  brought  his  action  for  a  breach  of  that  part  of 
the  award  which  is  void  in  itself,  and  consequently  has  not 
any  cause  of  action."  ^ 

This,  as  has  been  observed,  is  an  anomaly ;  for,  as  by 
alleging  and  setting  forth  the-  award  he  fully  traverses  the 
plea  which  denied  the  existence  of  an  award,  the  replication 

1  There  are  also  certain  specific  pleas  bar,  as  they  give  an  answer  in  point  of 

.which   present  the   anomaly   of   being  fact,  and  upon  the  merits  ;  but  they  are 

neither  by  way  of  traverse  nor  of  con-  in  the  nature  of  confession  only,  without 

fession  and  avoidance,  and  which  there-  avoidance,  for  they  admit  the  right  of 

fore  deserve  notice  in  this  place.    These  action  to  exist.     (Stephen,  5th  English 

are  the  pleas  of  Tender  and  of  Paifinent  ed.  331.) 

into  Court.    By  the  first  of  these,  the  de-         ^  1  Saund.  103,  n.  1 ;  Meredith  v.  Al- 

feudant  alleges  that  he  has  been  always  leyn,  1  Salk.  138 ;  s.  c.  Carth.  116 ;  Nich- 

ready  to  pay  the  debt  demanded,  and  olson  v.  Simpson,  Str.  299.    Though  this 

before  the  commencement  of  the  action  is  considered  as  a  solitary  case,  it  may  be 

tendered  it  to  the  plaintiff,   and   now  observed  that  another  analogous  one  is  to 

brings  it  into  Court  ready  to  be  paid  to  be  found  (Gayle  v.  Betts,  1  ilod.  227). 
him.     By  the  second  of  these  pleas,  the         3  Hayman  v.  Gerrard,  1  Saund.  103 ; 

defendant  alleges  simply  that  he  brings  Jones,  arguendo  (in  argument),  quoting 

a  sum  of  money  into  Court  ready  to  be  Holt,  C.  J.,  in  Meredith  v.  AUeyn,  ubi 

paid  to  the  plaintiff,  and  that  the  latter  supra.    This  reason  is  not  satisfactory 

has  no  claim  to  any  larger  amount,  to  Mr.  Stephen. 
They  are  both  in  the  nature  of  pleas  in 


RULES  WHICH   TEND   TO   THE   PRODUCTION   OF  AN  ISSUE.      289 

would  seem,  according  to  the  general  rule  under  consideration, 
to  be  sufficient  without  the  specification  of  any  breach.  And 
in  accordance  with  that  rule  it  is  expressly  laid  down,  that  in 
all  other  cases,  "  if  the  defendant  pleads  a  special  matter  that 
admits  and  excuses  a  non-'performance,  the  plaintiff  need  only 
answer  and  falsify  the  special  matter  alleged;  for  he  that 
excuses  a  non-performance  supposes  it,  and  the  plaintiff  need 
not  show  that  which  the  defendant  hath  supposed  and 
admitted."  i 

Rule  II.    Upon  a  Traverse,  Issue  must  be  Tendered.   V 

In  the  account  already  given  of  traverses,  it  was  shown  that, 
with  the  exception  of  a  special  traverse,  the  different  forms 
all  involve  a  tender  of  issue.     The  rule  under  consideration 
prescribes  this  as  a  necessary  incident  to  them ;  and  estab- 
lishes it  as  a  general  principle,  that  wherever  a  traverse  takes 
place,  or,  in  other  words,  wherever  a  denial  or  contradiction 
of  fact  occurs  in  pleading,  issue  ought,  at  the  same  time,  to 
be  tendered  on  the  fact  denied.     The  reason  is,  that  as  by   , 
the  contradiction  it  sufficiently  appears  what  is  the  issue  or    ■ 
matter  mdispute  between  the  parties,  it  is  time  that  the  plead-  j 
ing  should  now  close.,  and  that  the  method  of  deciding  this 
issue  should  be  adjusted. 

The  formulce  of  tendering  the  issue  in  fact  vary,  of  course, 
according  to  the  mode  of  trial  proposed.  i 

The  tender  of  an  issue  to  Vtp  ^t-i'pyI  hy  y^/y>.y  jg  ]\y  ^,  formnlp  / 
called  iXydMnclusion  to  the  country^  This  conclusion  is  in  the 
following  words,  when  the  issue  is  tendered  by  the  defendant  : 
"  And  of  this  the  said  C.  D.  puts  himself  upon  the  country." 
When  it  is  tendered  by  the  plaintiffs  the  formula  is  as  follows : 
"And  this  the  said -4.  B.  prays  may  he  inquired  0/ by  the 
country."  2  It  is  held,  however,  that  there  is  no  material 
difference  between  these  two  modes  of  expression,  and  that  if 
ponit  se  be  substituted  for  petit  quod  inquiratur,  or  vice  versa^ 
the  mistake  is  unimportant.^ 

1  Per  Holt,  C.  J.,  Meredith  i».  Alleyn,    Glover,  10  Mod.  166;  Bract.  57;   Ry. 
1  Salk.  138.  Plac.  Pari.  146. 

"  Heath's  Maxims,  68  ;   Weltale  v.        ^  Weltale  v.  Glover,  ubi  supra. 

19 


290  COMMON-LAW  PLEADING. 

With  respect  to  the  extraordinary  methods  of  trial,  their 
occurrence  is  too  rare  to  have  given  rise  to  any  illustration  of 
the  rule  in  question.  It  refers  chiefly  to  traverses  of  such 
matters  of  fact  as  are  triable  by  the  country  ;  and,  therefore, 
we  find  it  propounded  in  the  books  most  frequently  in  the 
following  form  :  Tliat  upon  a  negative  and  ajfirmative  the 
pleading  shall  conclude  to  the  country,  hut  otherwise  with  a 
verification} 

Exception. 

To  the  rule,  in  whatever  form  expressed,  there  is  the  follow- 
ing exception ;  That  when  new  matter  is  introduced^  the  pleading 
should^ always  conclude  with  a  verification? 

To  this  exception  belongs  the  case,  formerly  noticed,  of 
special  traverses.  These,  as  already  explained,  never  tender 
issue,  but  always  conclude  with  a  verification;  and  the  reason 
.seems  to  be,  that  in  such  of  them  as  contain  new  matter  in 
..the  inducement,  the  introduction  of  that  new  matter  will  give 
the  opposite  party  a  right  to  be  heard  in  answer  to  it  if  the 
absque  hoc  be  immaterial,  and  consequently  makes  a  tender  of 
V^issue  premature.  And,  on  the  other  hand,  with  respect  to  such 
special  traverses  as  contain  no  new  matter  in  the  inducement, 
they  seem  in  this  respect  to  follow  the  analogy  of  those  first 
mentioned,  though  they  are  not  within  the  same  reason. 

Not  only  in  the  case  of  special  traverses,  but  in  other 
instances  also,  to  which  that  form  does  not  apply,  a  traverse 
may  sometimes  involve  the  allegation  of  new  matter  ;  and 
in  all  such  instances,  as  well  as  upon  a  special  traverse, 
and  for  a  similar  reason,  the  conclusion  must  be  with  a 
verification,  and  not  to  the  country. 

Examples :  (1)  Where  the  action  is  in  debt  on  a  bond  con- 
ditioned for  performance  of  covenants,  if  the  defendant  pleads 
generally  performance  of  the  covenants,  and  the  plaintiff,  in  his 
replication,  relies  on  a  breach  of  them,  he  must  show  specially  in 
what  that  breach  consists ;  for  to  reply  generally  that  the  defendant 

1  Com.  Dig.  Pleader,  E.  32 ;  1  Saund.  Stile,  401  ;  Comwallis  v.  Sarery,  2 
103,  n.  1.  Burr.  772;   Vere  v.  Smith,  2  Lev.  5; 

2  1  Saund.  103,  n.  1,  and  the  authori-  s.  c.  Vent.  121  ;  Sayre  v.  Minns,  Cowp. 
ties  there  cited ;  "Whitehead  v.  Buckland,  575 ;  Henderson  v.  Withy,  2  T.  K.  576. 


RULES  WHICH  TEND   TO   THE  PRODUCTION  OF  AN  ISSUE.      291 

did  not  perform  them  would  be  too  vague  and  uncertain.^  His 
replication,  therefore,  setting  forth,  as  it  necessarily  does,  the 
circumstances  of  the  breach,  discloses  new  matter;  and  conse- 
quently, though  it  is  a  direct  denial  or  traverse  of  the  plea,  it 
must  not  tender  issue,  but  must  conclude  with  a  verification.^ 

(2)  In  an  action  of  debt  on  bond  conditioned  to  indemnify 
the  plaintiff  against  the  consequences  of  a  certain  act,  if  the 
defendant  pleads  non  damnificatus  (not  damaged),  and  the  plain- 
tiff replies,  alleging  a  damnification,  he  must,  on  the  principle 
just  explained,  set  forth  the  circumstances,  and  the  new  matter 
thus  introduced  will  make  a  verification  necessary.* 

(3)  The  plaintiff  declared  in  debt,  on  a  bond  conditioned  for 
the  performance  of  certain  covenants  by  the  defendant  in  his 
capacity  of  clerk  to  the  plaintiff,  one  of  which  covenants  was  to 
account  for  all  the  money  that  he  should  receive.  The  defendant 
pleaded  performance.  The  plaintiff  replied,  that  on  such  a  day 
such  a  sum  came  to  his  hands,  which  he  had  not  accounted  for. 
The  defendant  rejoined  that  he  did  account,  and  in  the  following 
manner :  that  thieves  broke  into  the  counting-house  and  stole  the 
money,  and  that  he  acquainted  the  plaintiff  with  the  fact ;  and  he 
concluded  with  a  verification.  The  court  held,  that  though  there 
was  an  express  affirmative  that  he  did  account,  in  contradiction 
to  the  statement  in  the  replication  that  he  did  not  account,  yet 
that  the  conclusion  with  a  verification  was  right ;  for  that,  new 
matter  being  alleged  in  the  rejoinder,  the  plaintiff  ought  to  have 
liberty  to  come  in  with  a  surrejoinder,  and  answer  it  by  traversing 
the  robbery.* 

The  application,  however,  to  particular  cases,  of  this  excep- 
tion, as  to  the  introduction  of  new  matter,  is  occasionally  nice 
and  doubtful ;  and  it  becomes  difficult  sometimes  to  say  whether 
there  is  any  such  introduction  of  new  matter  as  to  make  the 
tender  of  issue  improper. 

Example :  In  debt  on  a  bond  conditioned  to  render  a  full  ac- 
count to  the  plaintiff  of  all  such  sums  of  money  and  goods  as 
were  belonging  to  W.  N.  at  the  time  of  his  death,  the  defendant 
pleaded  that  7io  goods  or  sums  of  money  came  to  his  hands.  The 
plaintiff  replied,  that  a  silver  bowl,  which  belonged  to  the  said  W. 
N.  at  the  time  of  his  death,  came  to  the  hands  of  the  defendant, 

^  This  results  from  a  rule  wliich  wiU         *  gee  an   example    in    Richards  v. 

be  discussed  hereafter.  Hodges,  2  Saund.  82. 

2  See  an  example  in  Gainsford  v.         *  Vere  v.  Smith,  2  Lev.  5 ;  s.  c.  Vent 

Griffith,  1  Saund.  54.  121. 


292  COMMON-LAW  PLEADING. 

viz.,  on  such  a  day  and  year ;  "  and  this  he  is  ready  to  verify,"  &c. 
On  demurrer,  it  was  contended  that  the  replication  ought  to  have 
concluded  to  the  country,  there  being  a  complete  negative  and 
affirmative  ;  but  the  court  thought  it  well  concluded,  as  new  matter 
was  introduced.  However,  the  learned  judge  who  reports  the 
case  thinks  it  clear  that  the  replication  was  bad  ;  and  Mr.  Ser- 
jeant Williams  expresses  the  same  opinion,  holding  that  there 
was  no  introduction  of  new  matter,  such  as  to  render  a  verification 
proper.^ 

\   EuLE  III.    Issue,  when  well  Tendered,  must  be  Accepted.^ 

If  issue  be  well  tendered,  both  in  point  of  substance  and  in 
point  of  form,  nothing  remains  for  the  opposite  party  but  to 
accept  or  join  in  it,  and  he  can  neither  demur,  traverse,  nor 
plead  in  confession  and  avoidance ;  hut  he  may  plead  in 
estoppel. 

The  acceptance  of  the  issue,  in  case  of  a  conclusion  to  the 
country,  i.  e.,  of  trial  by  jury,  may,  as  already  explained, 
either  be  added  in  making  up  the  issue  or  paper-book,  or 
may  be  filed  or  delivered  before  that  transcript  is  made  up. 
It  is  in  both  cases  called  the  similiter,  and  in  the  latter 
case  a  special  similiter.  The  form  of  a  special  similiter  is 
thus:  "And  the  said  A.  5."  for  "  C.  i)."j,  "as  to  the  plea" 
(or  "replication,"  etc.),  "of  the  said  C.  i>."  for  "^.  B:'J, 
"  whereof  he  hath  put  himself  upon  the  country  "  for  whereof 
he  hath  prayed  it  may  be  "  inquired  by  the  country  "),  "  doth 
the  like."  The  similiter,  when  added  in  making  up  the  issue 
or  paper-book,  is  simply  this  :  "  And  the  said  A.  B."  for 
"  a  Drj,  "  doth  the  like." 

As  the  party  has  no  option  in  accepting  the  issue,  when 
well  tendered,  and  as  the  similiter  may  in  that  case  be  added 
for  him,  the  acceptance  of  the  issue,  when  well  tendered,  may 
be  considered  as  a  mere  matter  of  form.  It  is  a  form,  how- 
ever, which  should  be  invariably  observed  ;  and  its  omission 

1  Hayman  v.  Gerrard,  1  Saund.  101.  "Wilson  v.  Kemp,  2  M.  &  S.  549.  "In 
But  see  Cornwallis  v.  Savery,  Burr.  772 ;  all  pleadings,  wherever  a  traverse  was  first 
Sayre  v.  Minns,  Cowp.  575.  properly  taken,  the  issue  closed."     (Gilb., 

2  Bac.    Ab.    Pleas,    &c.    363 ;     5th  C.  P.  66.) 
ed.;  Digby  v.  Fitzharbert,  Hob.   104; 


RULES   WHICH   TEND  TO   THE  PRODUCTION  OP  AN  ISSUE.      293 

has  sometimes  proved  a  ground  of  successful  objection,  even 
after  verdict.^ 

The  rule  expresses  that  the  issue  must  be  accepted  only 
when  it  is  well  tendered.  For  if  the  opposite  party  thinks 
the  traverse  bad^  in  substance  or  in  form,  or  objects  to  the 
Tnode  of_trial  proposed,  in  either  case  he_J8^ot_obliged_to_ 
add  the  similiter^,  but  may  demur^  and,  if  it  has  been  added 
for  him,  may  strike  it  out  and  demur. 

The  similiter^  therefore,  serves  to  mark  the  acceptance 
both  of  the  question  itself  and  the  mode  of  trial  proposed. 
It  seems  originally,  however,  to  have  been  introduced  with  a 
view  to  the  latter  point  only.  As  has  been  already  explained, 
the  resort  to  a  jury,  in  ancient  times,  could  generally  be 
had  only  by  the  mutual  consent  of  each  party.  It  appears 
to  have  been  with  the  object  of  expressing  such  consent 
that  the  similiter  was  in  those  times  added  in  drawing  up 
the  record ;  and  from  the  record  it  afterward  found  its  way 
into  the  written  pleadings.  Accordingly,  no  similiter  or 
other  acceptance  of  issue  is  necessary  when  recourse  is  had 
to  any  of  the  other  modes  of  trial ;  and  the  rule  in  question 
does  not  extend  to  these.  Thus,  when  issue  isj^ndered  to 
bejtried  by  the  record,  the  plaintiff  is  entitled  to  consider 
the  issue  as  complete  upon  such  tender,^  and  no  acceptance 
of  it,  on  the  other  side,  is  essential. 

The  rule  in  question  extends  to  an  issue  in  law,  as  well  as 
an  issue  in  fact ;  for,  by  analogy  (as  it  would  seem)  to  the 
similiter,  the  party  whose  pleading  is  opposed  by  a  demurrer 
is  required  formally  to  accept  the  issue  in  law  which  it  tenders 
by  the  formula  called  a  joinder  in  demurrer.     However,  it 

1  GriflBth  v.  Crockford,  3  Brod.  &  with  an  absque  hoc).  So  it  is  said,  per 
Bing.  1.  But  see  Saund.  319,  n.  6;  and  Holt,  C.  J.,  that  pleading  over,  when 
Tidd  956,  8th  ed.  issue    is  offered,   is    a    discontinuance. 

2  But  he  can  not  plead  over,  as  we  (Campbell  v.  St.  John,  1  Salk.  219.) 
have  seen  he  may  do  in  case  of  an  im-  ^  And  the  replication  may,  therefore, 
material  traverse  with  an  absque  hoc.  conclude  with  an  entry  that  a  day  is 
Whitehead  v.  Buckland,  Stile,  402 ;  given  to  inspect  the  record.  (Tipping 
where  Roll,  C.  J.,  says  the  plaintiff  v.  .Johnson,  2  Bos.  &  Pul.  302 ;  Jackson 
"  must  either  demur  or  join  issue  with  v.  Wickes,  2  Marsh.  354  ;  s.  c.  7  Taunt, 
you ;  and  I  have  not  heard  of  passing  30 ;  Pitt  v.  Knight,  1  Saund.  96  a,  Tidd, 
over  in  this  case,  as  may  be  done  in  the  800,  801,  8th  ed.) 

case  of  a  traverse"  (meaning  a  traverse 


294  COMMON-LAW  PLEADING. 

differs  in  this  respect  from  the  similiter,  that,  whether  the  issue 
in  law  be  well  or  ill  tendered  —  that  is,  whether  the  demurrer 
be  in  proper  form  or  not  —  the  opposite  party  is  equally  bound 
to  join  in  demurrer.  For  it  is  a  rule,  that  there  can  be  no 
demurrer  upon  a  demurrer,^  because  the  first  is  sufficient,  not- 
withstanding any  inaccuracy  in  its  form,  to  bring  the  record 
before  the  court  for  their  adjudication  ;  and  as  for  traverse  or 
pleading  in  confession  and  avoidance,  there  is  of  course  no 
ground  for  them  while  the  last  pleading  still  remains  unan- 
swered, and  there  is  nothing  to  oppose  but  an  exception  in 
point  of  law. 

1  Bac.  Ab.  Pleas,  &c.  N.  2.     Demurrer  upon  demurrer  is  a  discontinuance. 
Campbell  v.  St.  John,  1  Salk.  219. 


CHAPTER   X. 

OF  RULES  WHICH  TEND  TO   SECURE  THE  MATERIALITY 
OF    THE  ISSUE. 

In  order  to  secure  the  materiality  of  the  issue,  it  is  of 
course  necessary  that  at  each  step  of  the  series  of  pleadings, 
by  which  it  is  to  be  produced,  there  should  be  some  pertinent 
and  material  allegation  or  denial  of  fact.  On  this  subject, 
therefore,  a  general  rule  may  be  propounded  in  the  following 
form :  — 

Rule.    All  Pleadings  must  contain  Matter  Pertinent 
AND  Material. 

Examples :  (1)  If  to  an  action  of  assiimpsit  against  an  adminis- 
tratrix, laying  promises  by  the  intestate,  she  pleads  that  she,  the 
defendant  (instead  of  the  intestate),  did  not  promise,  the  plea  is 
obviously  immaterial  and  bad.^ 

(2)  So  where,  in  replevin  for  taking  cattle,  the  defendant  avowed 
taking  them  in  the  close  in  which,  etc.,  for  rent  in  arrear,  and  the 
plaintiff  pleaded  in  bar  to  the  avowry  that  the  cattle  were  not 
levant  (rising)  and  couchant  (lying  down)  on  the  close  in  which, 
etc.,  the  plea  was  holden  bad  on  demurrer ;  for  it  is  a  general 
rule,  that  all  things  upon  the  premises  are  distrainable  for  rent 
in  arrear,  and  the  levancy  and  couchancy  of  the  cattle  is  imma- 
terial, unless  under  special  circumstances,  such  as  did  not  appear 
by  the  plea  in  bar  to  have  existed  in  this  case.'' 

With  respect  to  traverses  in  particular,  this  general  doc- 
trine is  illustrated  in  the  books  by  subordinate  rules  of  a  more 
Rjiecial  kind.     Thus  it  is  laid  down:  — 

(1)  That  traverse   must  not  he   taken   on   an    immaterial 

oint.^ 

1  Anon.,  2  Vent.  196.  8  Com.  Dig.  rieader,  R.  8,  G.   10; 

2  Jones  V.  Powell,  5  Barn.  &  Cress.  647.     Bac.  Ab.  Pleas,  &c.  H.  5. 


296  COMMON-LAW  PLEADING. 

j  This  rule  prohibits,  first,  the  taking  ^3,  traverse  on  a  point 
TM/ffmmmaierial. 

'  Example:  "Where,  to  an  action  of  trespass  for  assault  and 
battery,  the  defendant  pleaded  that  a  judgment  was  recovered, 
and  execution  issued  thereupon  against  a  third  person,  and  that 
the  plaintiff,  to  rescue  that  person's  goods  from  the  execution, 
assaulted  the  bailiffs,  and  that  in  aid  of  the  bailiffs,  and  by  their 
covimand,  the  defendant  vioUlter  manus  imjjosuit  upon  the  plain- 
tiff, to  prevent  his  rescue  of  the  goods,  it  was  holden  that  a 
traverse  of  the  command  of  the  bailiffs  was  bad ;  for  even  without 
their  command  the  defendant  might  lawfully  interfere  to  prevent 
a  rescue,  which  is  a  breach  of  the  peace.^ 

.  So,  by  this  rulej^a  traverse  is  not^good  when  taken  on  matter 
I  th£_allegatim]^qf  which  was  premature^  jbhough  in  itself  not  im- 
'  material  to  the  case. 

Example  :  If  in  debt  on  bond  the  plaintiff  should  declare  that, 
at  the  time  of  sealing  and  delivery,  the  defendant  was  of  full  age, 
the  defendant  should  not  traverse  this,  because  it  was  not  neces- 
sary to  allege  it  in  the  declaration  ;  though  if  in  fact  he  was  a 
minor,  this  would  be  a  good  subject  for  a  plea  of  infancy,  to 
which  the  plaintiff  might  then  well  reply  the  same  matter,  viz., 
that  he  was  of  age.^ 

/  Again,  this  rule  prohibits  the  taJcinp  of  a  traverse  on  matter 
-  of.  aggravatiorii, ;  that  is,  matter  which  only  tends  to  increase 
I  the  amount  of  damages,,  and  does  not  concern  the  right  of 
'  ajfition  itself. 

Example :  In  trespass  for  chasing  sheep,  per  quod  (through 
which)  the  sheep  died,  the  dying  of  the  sheep,  being  aggravation 
only,  is  not  traversable.^ 

So  it  is  laid  down  that,  in  general,  traverse  is  not  to_Ji£. 
taken  on  matter  of  inducementj  that  is,  matter  brought  fox- 
ward  only  by  way  of  explanatory  introduction  to  the  main 
allftgntions. 

1  Bridgewater  v.  Bythway,   3   Lev.  traversable.      (Britton  v.  Cole,  3  Salk. 

113.     AUter  (otherwise),  if  not  done  to  409.) 

prevent  a  rescue ;  for  in  a  case  where         ^  Sir  Ralph  Bovy's   Case,   1  Vent, 

defendant  justifies  merely  as  assistant  217;  Ricketts  v.  Loftus,  14  Q.  B.  482. 
to,  and  by  command  of,  a  person  exe-         ^  Leech  v.  Widsley,  1  Vent.  54 ;  s.  C. 

cuting  legal  process,  the  command  is  Lev.  283. 


RULES   TO   SECURE  THE   MATERIALITY   OP   THE   ISSUE.       297 

But  this  is  open  to  many  exceptions,  for  it  often  happens 
that  introductory  matter  is  in  itself  essential,  and  of  the  sub- 
stance ojjhe^casej^and^  such  instances,  though  in  the  nature 
of  inducement,  it  may  nevertheless  be  traversed  .^ 

While  it  is  thus  the  rule,  that  traverse  must  not  be  taken 
on  an  immaterial  point,  it  is,  on  the  other  hand,  to  be  ob- 
served tJiat,  where  there  are  several  material  alhaationa.  it  is  in 
the  option  of  the  pleader  to  tra.versp.  whinh  he  pleases? 

Examples:  (1)  If,  in  trespass,  the  defendant  pleads  that  A. 
was  seised  and  demised  to  him,  the  plaintiff  may  traverse  either 
the  seisin  or  the  demise.* 

(2)  Again,  in  trespass,  the  defendant  pleads  that  A.  was  seised, 
and  enfeoffed  B.,  who  enfeoffed  C,  who  enfeoffed  D.,  whose  estate 
the  defendant  hath  :  in  this  case  the  plaintiff  may  traverse  which 
of  the  feoffments  he  pleases.* 

The  principle  of  this  rule  is  sufficiently  clear ;  for  it  is 
evident  that  where  the  case  of  any  party  is  built  upon  sev- 
eral allegations,  each  of  which  is  essential  to  its  support,  it  is 
as  effectually  destroyed  by  the  demolition  of  any  one  of  these 
parts  as  of  another. 

It  is  also  laid  down —  ^ 

(2)  That  a  traverse  must  not  he  too  large,  nor,  on  the  other 
hand,  too  narrow.^ 

As  a  traverse  must  not  be  taken  on  an  immaterial  allega- 
tion, so,  when  applied  to  an  allegation  that  is  material,  it 
ought,  generally,  to  tajke  in  no  more  and  no  less  of  tlrat  nllo^ 
aation  tha,n  is  mMeriaL  If  it  involves  more,  the  traverse  is 
said  to  be  too  large  ;  if  less,  too  narrow. 

Traverses  too  Large. 
A  traverse  may  be  too  Inrgf^  V>y  involvina;  in  the  issue  / 
quantity,  time,  place^  or  other  circuiriat^np.PH^  wbi(;;,h^  thnnp;h 

1  Com.  Dig.  Pleader,  G.  14;    Kin-  Ruddle,  Salk.  627  ;  Bac.  Ab.  Pleas,  &c. 

nersley    v.    Cooper,    Cro.    Eliz.    168;  H.  5, 392,  5th  ed. 
Carvick  v.  Blagrave,  1  Brod.  &  Bing.         »  Com.  Dig.  Pleader,  G.  10 ;  Moor  v. 

531.  Pudsey,  Hardr.  317. 

'^  Com.  Dig.  Pleader,  G.  10;  Read's         *  Doct.  PI.  365. 
Case,   6   Co.   Kep.  24;    Doct.  PI.  354,         ^  i  Sauud.  268,  n.  1,  269,  n.  2 ;  Com. 

365  ;  Baker  v.  Blackman,  Cro.  Jac.  682  ;  Dig.  Pleader,  G.  15,  G.  16. 
Young  V.  Iludd,  Carth.  347 ;  Young  v. 


298  COMMON-LAW  PLEADING. 

j  forming  part  of  the  allegation  traversed,  are  immaterial  to  the 
Imei'its  of  the  cause. 

Examples :  (1)  In  an  action  of  debt  on  bond  conditioned  for 
the  payment  of  £1,550,  the  defendant  pleaded  that  part  of  the 
sum  mentioned  in  the  condition,  to  wit,  £1,500,  was  won  by 
gaming,  contrary  to  the  statute  in  such  case  made  and  provided, 
and  that  the  bond  was  consequently  void.  The  plaintiff  replied 
that  the  bond  was  given  for  a  just  debt,  and  traversed  that  the 
£1,500  was  won  by  gaming,  in  manner  and  form  as  alleged.  On 
demurrer,  it  was  objected  that  the  replication  was  ill,  because  it 
made  the  precise  sum  parcel  of  the  issue,  and  tended  to  oblige 
the  defendant  to  prove  that  the  whole  sum  of  £1,500  was  won  by 
gaming ;  whereas  the  statute  avoids  the  bond  if  any  part  of  the 
consideration  be  on  that  account.  The  court  was  of  opinion  that 
there  was  no  color  to  maintain  the  replication,  for  that  the  ma- 
terial part  of  the  plea  was  that  part  of  the  money  for  which  the 
bond  was  given  was  won  by  gaming ;  and  that  the  words  "  to 
wit,  £1,500,"  were  only  form,  of  which  the  replication  ought  not 
to  have  taken  any  notice.^ 

(2)  Where  the  condition  of  a  bond  was  that  the  obligor  should 
serve  the  obligee  half  a  year,  and,  in  an  action  of  debt  on  the 
bond,  the  defendant  pleaded  that  he  had  served  him  half  a  year 
at  D.,  in  the  county  of  K.,  and  the  plaintiff  replied  that  he  had 
not  served  him  half  a  year  at  D.,  in  the  county  of  K.,  this  was 
adjudged  to  be  a  bad  traverse,  as  involving  the  place,  which  was 
immaterial.^ 

(3)  Where  the  plaintiff  pleaded  that  the  queen,  at  a  manor 
court,  held  on  such  a  day,  by  I.  S.,  her  steward,  and  by  copy  of 
court-roll,  etc.,  granted  certain  land  to  the  plaintiff's  lessor,  and 
the  defendant  rejoined,  traversing  that  the  queen,  at  a  manor 
court,  held  such  a  day,  by  I.  S.,  her  steward,  granted  the  land  to 
the  lessor,  the  court  held  that  the  traverse  was  ill,  "  for  the  jury 
are  thereby  bound  to  find  a  copy  on  such  a  day,  and  by  such  a 
steward,  which  ought  not  to  be."  The  traverse,  it  seems,  ought 
to  have  been,  that  the  queen  did  not  grant,  iii  manner  and  form 
as  alleged,^  words  which,  as  already  observed,  bring  into  issue 
only  the  substance  of  the  allegation. 

(4)  Where,  in  an  action  on  the  case  for  stopping  three  lights 
(windows),  the  defendant  traversed  that  he  stopjyed  the  said  three 
lights,  it  was  held  bad,  for  if  he  stopped  any  of  them,  the  action  lay.* 

1  Colborne  t;.   Stockdale,   Str,  493;         3  Lane  t;.  Alexander,  Yelv.  122. 

8.  c.  8  Mod.  58.  *  Com.  Dig.  Pleader,  G.  15;  Newhall 

2  Doct.  PI.  360.  V.  Barnard,  Yelv.  225. 


RULES  TO   SECURE  THE   MATERIALITY  OF  THE  ISSUE.       299 

Again,  a  traverse  may  be  too  large,  by  being  taken  in  the 
conjunctive,  instead  of  the  disjunctive,  where  it  is  not  material 
that  the  allegation  traversed  should  be  proved  conjunctively. 

Example :  In  an  action  of  assumpsit,  the  plaintiff  declared  on 
a  policy  of  insurance,  and  averred  "  that  the  ship  insured  did  not 
arrive  in  safety ;  but  that  the  said  ship,  tackle,  apparel,  ordnance, 
munition,  artillery,  boat,  and  other  furniture,  were  sunk  and  de- 
stroyed in  the  said  voyage."  The  defendant  pleaded  with  a 
traverse,  "  Without  this,  that  the  said  ship,  tackle,  apparel,  ord- 
nance, munition,  artillery,  boat,  and  other  furniture,  were  sunk 
and  destroyed  in  the  voyage,  in  manner  and  form  as  alleged." 
Upon  demurrer,  this  traverse  was  adjudged  to  be  bad;  and  it 
was  held  that  the  defendant  ought  to  have  denied,  disjunctively, 
that  the  ship  o?-  tackle,  etc.,  was  sunk  or  destroyed,  because,  in 
this  action  for  damages,  the  plaintiff  would  be  entitled  to  recover 
compensation  for  any  part  of  that  which  was  the  subject  of  insur- 
ance, and  had  been  lost ;  whereas  (it  was  said),  if  issue  had  been 
taken  in  the  conjunctive  form,  in  which  the  plea  was  pleaded, 
"and  the  defendant  should  prove  that  only  a  cable  or  anchor 
arrived  in  safety,  he  would  be  acquitted  of  the  whole."  ^ 

On  the  other  hand,  however,  a  parti/  may,  generally,  traverse 
a  material  allegation  of  title  or  estate,  to  the  extent  to  which  it 
is  alleged,  though  it  need  not  have  been  alleged  to  that  extent ; 
and  such  traverse  will  not  be  considered  as  too  large.^ 

Examples  :  (1)  In  an  action  of  replevin,  the  defendant  avowed 
the  taking  of  the  cattle,  as  damage  feasant,  in  the  place  in  which, 
etc. ;  the  same  being  the  freehold  of  Sir  F.  L.  To  this  the  plain- 
tiff pleaded  that  he  was  seised  in  his  demesne  as  of  fee  of  B. 
close,  adjoining  to  the  place  in  which,  etc. ;  that  Sir  F.  L.  was 
bound  to  repair  the  fence  between  B.  close  and  the  place  in 
which,  etc. ;  and  that  the  cattle  escaped  through  a  defect  of  that 
fence.  The  defendant  traversed,  that  the  plaintiff  was  seised 
in  his  dernesne  as  of  fee  of  B.  close  ;  and  on  demurrer  the  court 
was  of  opinion  that  it  was  a  good  traverse,  for  though  a  less 
estate  than  a  seisin  in  fee  would  have  been  sufficient  to  sustain 
the  plaintiff's  case,  yet,  as  the  plaintiff,  who  should  best  know 

1  Goram  v.  Sweeting,  2  Saund.  205.  Blagrave,  1  Brod.  &Bing.  531.    Palmer 

2  Com.  Dig.  Pleader,  G.  16;  Sir  y.  Ekins,  2  Str.  818,  is  apparently  contra, 
Francis  Leke's  Case,  Dy.  365  ;  2  Saund.  but,  from  the  report  of  the  same  case 
207,  n.  24 ;  Wood  v.  Budden,  Hob.  119 ;  (2  Ld.  Raym.  1550),  it  may  be  reconciled 
Tatem  v.  Perient,  Yelv.  195 ;  Carvick  v.  with  the  other  authorities. 


300  COMMON-LAW  PLEADING. 

what  estate  he  had,  had  pleaded  a  seisin  in  fee,  his  adversary- 
was  entitled  to  traverse  the  title  so  laid.^ 

(2)  Again,  in  an  action  of  trespass,  for  trespasses  committed 
in  a  close  of  pasture,  containing  eight  acres,  in  the  town  of  Tol- 
lard  Royal,  the  defendant  pleaded  that  W.,  Earl  of  Salisbury,  was 
seised  in  fee  and  of  right  of  an  ancient  chase  of  deer,  called  Cran- 
born,  and  that  the  said  chase  did  extend  itself,  as  well  in  and 
through  the  said  eight  acres  of  pasture  as  in  and  through  the 
said  town  of  Tollard  Royal  5  and  justified  the  trespasses  as  com- 
mitted in  using  the  said  chase.  The  plaintiff  traversed,  that  the 
said  chase  extended  itself  as  tvell  to  the  eight  acres  as  to  the  whole 
toivn  ;  and,  issue  being  taken  thereon,  it  was  tried  and  found  for 
the  plaintiff.  It  was  then  moved,  in  arrest  of  judgment,  "  that 
this  issue  and  verdict  were  faulty,  because,  if  the  chase  did  ex- 
tend to  the  eight  acres  only,  it  was  enough  for  the  defendant ; 
and  therefore  the  finding  of  the  jury,  that  it  did  not  extend  as 
well  to  the  whole  town  as  to  the  eight  acres,  did  not  conclude 
against  the  defendant's  right  in  the  eight  acres,  which  was  only 
in  question.  But  it  was  answered  by  the  court,  that  there  was 
no  fault  in  the  issue,  much  less  in  the  verdict  (which  was  accord- 
ing to  the  issue),  but  the  fault  was  in  the  defendant's  plea;  for 
he  puts  in  his  plea  more  than  he  needed,  viz.,  the  whole  town, 
which,  being  to  his  own  disadvantage  and  to  the  advantage  of  the 
plaintiff,  there  was  no  reason  for  him  to  demur  upon  it,  but  rather 
to  admit  it,  as  he  did,  and  so  to  put  it  in  issue.  And  so  judgment 
was  given  for  the  plaintiff."  ^ 

Traverses  too  Narrow. 

A  traverse  is  too  narrow  when  it  fails  to  answer  fully  the 
whole  of  the  adversary's  allegation,  wliich  it  proposes  to  answer.^ 

Examples :  (1)  If  to  an  action  on  the  case  for  slander,  charging 
the  words  to  have  been  spoken  at  S.,  on  a  day  named,  the  defend- 
ant plead  that  he  spoke  the  words  imputed  to  him  at  W.,  as 
counsel  in  a  judicial  proceeding,  absque  hoe  "  that  he  spoke  the 
words  at  S.  before  or  after  the  day  mentioned  in  the  declaration," 
by  which  he  excluded  the  day  itself,  and  answered  not  to  it,  the 
traverse  is  too  narrow^  and  for  that  reason  is  bad.-* 

(2)  In  an  action  of  assicmj^sit,  to  recover  a  recompense  for 
service  from  March  21,  1647,  to  November  1, 1664,  the  defendant 

'  Sir  Francis  Leke'a  Case,  Dy.  365 ;         3  Min.  ingt.  IV.  930. 
2  Saund.  206  a,  n.  22.  4  Cora.  Dig.  Pleader,  G.  16 ;  Burkley 

2  Wood  V.  Budden,  Hob.  U9.  v.  Wood,  4  Co.  Kep.  14  b. 


EULES  TO   SECUEE  THE   MATERIALITY   OP  THE  ISSUE.       301 

pleaded  that  the  plaintiff  left  the  service  on  December  31,  1658  ; 
without  this  that  th.e  plaintiff  served  until  November  1,  1664; 
it  was  held  to  be  too  narrow  a  traverse,  because  the  plaintiff  was 
entitled  to  recover  in  proportion  to  the  time  he  served.  In 
another  aspect  it  was  also  too  large,  because  it  put  in  issue  the 
whole  time  of  service,  thus  calling  upon  the  plaintiff  to  prove 
more  than  he  was  obliged  to  in  order  to  recover.^ 

(3)  In  an  action  of  trespass  for  breaking  open  the  outer  doors 
of  the  plaintiff^s  dwelling-house,  the  defendants  pleaded  that 
they  were  sheriff's  officers,  and  that  an  execution  of  fieri  facias 
upon  the  plaintiff's  goods  came  to  their  hands  as  such  officers, 
by  virtue  of  which  they  entered  the  house.  The  court  held  the 
plea  bad,  because  it  did  not  answer  the  breaking,  and  therefore 
tended  to  raise  an  immaterial  issue.^  This  case  illustrates  the 
principle  under  consideration,  although,  being  a  plea  by  way  of 
confession  and  avoidance,  it  is  not  an  example  of  too  narrow  a 
traverse.     Many  similar  cases  can  be  found  in  the  books. 

(4)  In  an  action  of  trover  for  the  value  of  cattle  and  goods  of 
the  plaintiff,  to  wit,  beasts  of  the  plough,  implements  of  hus- 
bandry, books,  bedsteads,  etc.,  the  defendant  by  his  plea  justified 
the  seizure  as  for  distress,  for  rent  in  arrear.  The  plaintiff  re- 
plied that  he  was  an  husbandman,  and  that  the  goods  mentioned 
in  the  count  were  beasts  of  the  plough  and  implements  of  hus- 
bandry, there  being  then  on  the  premises  other  available  distress. 
This  replication  was  held  bad  as  being  too  narrow,  not  traversing 
the  legality  of  the  distress  as  to  the  books  and  bedsteads,  although 
it  professed  to  answer  the  whole  plea.^ 

(5)  In  an  action  of  trespass  quare  clausum  fregit  for  breaking 
plaintiff's  close,  the  plea  of  the  defendant  stated  that  the  plaintiff 
was  his  lessee  of  the  locus  in  quo  (place  in  which),  and  that  in  the 
lease  was,  amongst  others,  a  condition  that  the  lessee  should  not 
assign  in  any  way,  notwithstanding  which  the  lessee  had  as- 
signed in  a  particular  manner  which  was  specified.  The  plaintiff 
replied  that  he  had  not  assigned  in  that  manner.  This  replication 
was  held  to  be  bad,  because  it  limited  the  denial  to  the  specific 
mode  of  assignment  stated  in  the  plea.^ 

So,  a  traverse  may  be  too  narrow  by  being  applied  to  part 
only  of  an  allegation,  which    the    law  considers  as    in    its 

1  Com.  Dig.  Pleader,  G.  16 ;  Osborne  ^  Davies  v.  Aston,  1  Man.  Gr.  &  Scott, 
V.  Kogers,  1  Saund.  268,  n.  1,  269  a,  b,    746. 

and  n.  2.  *  Hammond  «.  Colls,  ihid.  916. 

2  Buckingham  v.  Francis,  II  Moore, 
40. 


302  COMMON-LAW  PLEADING. 

nature  indivisible  and  entire,  such  as  that  of  a  prescription  or 
grant. 

Example :  In  an  action  of  trespass  for  breaking  and  entering 
the  plaintiff's  close,  called  S.  C,  and  digging  stones  therein,  the 
defendant  pleaded  that  there  are  certain  wastes  lying  open  to  one 
another,  one,  the  close  called  S.  C,  and  the  other  called  S.  G., 
and  so  proceeded  to  prescribe  for  the  liberty  of  digging  stones  in 
both  closes,  and  justified  the  trespasses  under  that  prescription. 
The  replication  traversed  the  prescriptive  right  in  S.  C.  onl^, 
dropping  S.  G. ;  but  the  court  held  that  the  traverse  could  not 
be  so  confined,  and  must  be  taken  on  the  whole  prescription  as 
laid.i 

The  principle,  which  forbids  too  narrow  a  traverse,  is  the 
same  as  that  which  requires  that  everi/  pleading  shall  really 
answer  so  much  of  the  adversary^ s  pleading  as  it  professes  and 
undertakes  to  answer. 

1  Morewood  v.  Wood,  4  T.  E.  157;    Bradburn  v.  Kennerdale,  Carth.  164;  1 
and  see  Doct.  PI.  351, 352, 370 ;  Priddle    Saund.  268,  n.  1. 
and  Napper's  Case,  11  Co.  Rep.  10  b; 


CHAPTER    XL 

OF  RULES  WHICH   TEND    TO    PRODUCE    SINGLENESS    OR 
UNITY  IN  THE  ISSUE. 

The  following  rules  enforce  singleness  in  the  method  of 
pleading  or  allegation,  and,  by  consequence,  tend  to  produce  a 
single  issue. 

Rule  I.    Pleadings  must  not  be  Double.^ 

This  rule  applies  both  to  the  declaration  and  to  subsequent 
pleadings.  Its  meaning,  with  respect  to  the  former,  is  that 
the  declaration  must  not,  in  support  of  a  single  demand,  allege 
several  distinct  matters^  hy  any  one  of  which  that  demand  is 
sufficiently/  sup,ported.  With  respect  to  theZsubsequent  plead:L 
ings^the  meaning  is  that  none  of  them  is  to  co7itai7i  several 
distinct  answers  to  that  which  preceded^it,  and  the  reason  of  the  i 
rule  in  each  case  is,  that  such  pleading  tends  to  several  issues 
concerning  a  single  claim. 

The  rule  in  its  terms  points  to  douhleness  only,  as  if  it  pro- 
hibited only  the  use  of  two  allegations  or  answers  of  this 
description ;  but  its  meaning,  of  course,  equally  extends  to 
the  case  of  more  than  two,  the  term  douhleness,  or  duplicity, 
being  applied,  though  with  some  inaccuracy,  to  either  case. 

Of  this  rule,  as  applied  to  the  declaration,  the  following  are 

Examples:  (1)  The  plaintiff  declared  in  debt  on  a  peual  bill,*^ 
by  which  the  defendant  was  to  pay  ten  shillings  on  the  11th  of 
June,  and  ten  shillings  upon  the  10th  of  July  next  following,  and 
ten  shillings  every  three  weeks  after,  till  a  certain  total  sum  were 

1  Com.  Dig.  Pleader,  C.  33,  E.  2,  F.  in  use,  having  been  superseded  by  bonds 
16;  Bac.Ab.  Pleas,  ^«.  K. ;  Humphreys  with  conditions.  The  example  in  the 
V.  Bethily,  2  Vent.  198,  222;  Doct.  PI.  text  would,  therefore,  not  occur  in 
135.  modern  practice,  but  serves  equally  well 

2  Bills  penal  are  instruments  not  now  the  purpose  of  illustration. 


304  COMMON-LAW  PLEADING. 

satisfied  by  such  several  payments,  and  by  the  said  bill  the  de- 
fendant bound  himself  for  the  true  payment  of  the  said  several 
sums  in  the  penal  sum  of  seven  pounds,  and  the  plaintiff  alleged 
that  the  defendant  did  not  pay  the  said  total  sum,  or  any  -part 
thereof,  upon  the  several  days  aforesaid ;  whereby  an  action  had 
accrued  to  him  to  demand  the  said  penalty  of  seven  pounds. 
This  was  held  bad  for  duplicity.  For,  if  the  defendant  had  failed 
in  payment  of  any  one  of  the  sums,  such  failure  would  alone  be  a 
breach  of  the  condition,  and  sufficient  to  entitle  the  plaintiff  to 
the  penalty  he  claimed ;  and  the  plaintiff  ought,  therefore,  to 
have  confined  himself  to  the  allegation  of  the  non-payment  of 
one  of  those  sums  only.^ 

(2)  Where  the  plaintiff  declared  in  assumpsit,  that  the  de- 
fendant was  indebted  to  him  in_siuih-a-aiUIi»\for  nourishing  one 
E.  L.,  at  the  request  of  the  defendant,  which  the  latter,  promised 
to  pay,  and  also  that  the  defendant  promised  t-.n  pgy  him  so  much 
as_he  reasonably  deserved  to  have  for  nourishing  the  said  K_Iu_ 
during  the  same  time ;  this  was  bad  for  duplicity,  and,  indeed, 
also  for  repugnancy  (another  fault  in  pleading  that  will  be  here- 
after considered),  as  the  two  promises  —  to  pay  a  sum  certain, 
and  to  pay  quantum  meruit  —  were  inconsistent,  and  could  not 
stand  together.^ 

Of  duplicity  in  pleadings,  subsequent  to  the  declaration,  the 
following  instance  occurs  in  a  plea  in  abatement : 

Example  :  The  defendant  pleaded,  in  disability  of  the  person 
of  the  plaintiff,  ten^  different  outlawries  adjudged  against  him, 
and  it  was  held  that  the  plea  was  ill  for  duplicity ;  because  the 
plaintiff  was  disabled  as  well  by  one  outlawry  as  by  the  whole 
ten.^ 

The  following  is  an  instance  of  duplicity  in  a  plea  in  bar  : 

Example :  In  trespass  for  breaking  a  close  and  depasturing  the 
herbage  with  cattle,  if  the  defendant  pleads  that  A.  had  a  right  of 
common,  and  B.  also  a  right  of  common,  in  the  close,  and  that  the 
defendant,  as  their  servant  and  by  their  command,  entered  and 
turned  in  the  cattle,  in  exercise  of  their  rights  of  common,  the 
plea  is  bad  for  duplicity;  ^  because  the  title  of  either  one  or  other 

1  Humphreys  v.  Bethily,  2  Vent.  Cornwallis  v.  Savery,  2  Burr.  773  ;  Man- 
198,  222.  ser's  Case,  2  Co.  Rep.  4. 

'^  Hart  V.  Longfield,  7  Mod.  148.    As         »  Trevilian  i".  Seccomb,  Carth.  8. 
to  duplicity  in  the  declaration,  see  also         *  Vin.  Ab.  tit.  Double  Pleas,  A.  114, 

cites  15  Henry  VII.  10. 


EULES   TO   PRODUCE   SINGLENESS  OR   UNITY  IN  THE  ISSUE.      305 

of  the  commoners,  and  the  authority  derived  as  his  servant,  would 
have  alone  constituted  a  sufficient  answer  to  the  declaration. 

An  instance  of  duplicity  in  the  replication  is  the  following 

Example :  The  plaintiff  declared  in  trespass  for  breaking  and 
entering  his  stable,  cutting  asunder  a  beam,  and  throwing  down 
the  tiles  of  the  roof.  The  defendant  justified,  as  servant  to  Sir 
H.  G.,  and  pleaded  that  Sir  H.  G.  was  seised  of  a  wall  in  his 
demesne  as  of  fee,  and  because  the  beam  was  placed  in  the  wall 
of  the  said  Sir  H.  G.  without  his  consent,  the  defendant,  as  his 
servant,  in  order  to  remove  this  nuisance,  did  enter  the  stable  and 
cut  the  beam  as  near  to  the  wall  as  he  could,  doing  as  little  dam- 
age as  possible,  and  thereby  the  tiles  were  thrown  down.  The 
plaintiff   replied,  traversing  that  the  wall  was  Sir  H.  G.'s  ;  and 

then,    with    a    protestation     that    f-.hp.   wall    wag    nnt   his^    fnrt;ViPr 

pleaded  that  the  rJefenrlantj  of  his  nwn^xvroT|g^  did  throw  down 

the  tiles,  for  the  cutting  the  beam  as  aforesaid.     The  court  held 

that,  the  first  traverse  being  a  complete  answer  to  the  whole,  the 

second  made  the  replication  double.^ 

-i 
The  gbjSfiLof  this  rule  is  to  enforce  n.  sing-lp  issno  upon 

a  single  subject j)f  claim  or   defence ;   the   rule   is,  accord 

ingly,  carried   no  further  than  is   necessary  to  secure  this 

object. 

The  declaration,  therefore,  may,  in  stuppnrt  of  Rp.vf.ral  do.. 


mands,    allege    as  many  distinrt  'mnttoni'n  n<i  ^ni-^  reiippf'f^t^'>ly 


applicable  to  each. 

Example  :  Let  one  of  the  examples  above  given,  with  respect 
to  the  declaration,  be  so  far  varied  as  to  substitute,  for  the  case 
of  an  action  in  debt  on  a  penal  bill  for  the  penalty  accrued  in 
consequence  of  non-payment  of  a  sum  by  several  instalments,  the 
case  of  an  action  of  covenant,  on  a  covenant  to  pay  that  sum  by 
similar  instalments.  In  this  latter  case  the  plaintiff  might,  with- 
out duplicity,  declare  that  the  defendant  "  did  not  pay  the  said 
total  sum,  or  any  part  thereof,  upon  the  several  days  aforesaid." 
For  he  does  not,  as  in  the  action  upon  the  penal  bill,  found  upon 
such  non-payments  a  single  claim,  viz.,  the  claim  to  the  penalty 
of  seven  pounds  ;  there  being  no  penalty  in  question,  his  claims 
are  multiplied  in  proportion  to  the  number  of  non-payments;  that 
is,  he  is  entitled  to  ten  shillings  in  respect  of  the  first  default,  and 
ten  shillings  more  upon  each  of  the  rest ;  the  allegation  of  several 

1  Humphreys  e;.  Churchman,  Rep.  temp.  Hard.  289. 
20 


306  COMMON-LAW  PLEADING. 

defaults  is,  therefore,  in  this  case,  the  allegation  of  so  many  dis- 
tinct demands,  and  consequently  allowable.'^ 

So  thevlea,  though  it  must  not  contain  several  answers  to 
the  whole  of  the  declaration,  may  nevertheless^  make  distipQt 
/  answers^o  such  parts  ^f  it  as  relate  to  different  matters  sd 
I  claim  or  complaint.^ 

Example :  Thus,  in  the  preceding  example  of  duplicity  in  a  plea 
in  bar,  if  the  case  were  a  little  varied,  and  the  defendant,  being 
charged  with  putting  five  beasts  on  the  common,  had  pleaded  that 
A.  and  B.  had  respectively  rights  of  common  there,  and  that  he,  as 
the  servant  of  A.,  put  in  two  of  the  beasts  in  respect  of  his  common 
right,  and,  as  the  servant  of  B.,  put  in  three  in  respect  of  his 
common  right,  there  would  no  longer  be  duplicity ;  for  he  pleads 
the  several  titles,  not  as  several  answers  to  the  same  subject  of 
claim  or  complaint,  but  as  distinct  answers  to  different  matters 
of  complaint,  arising  in  respect  of  different  cattle.^ 

So,  in  the  replication  and  other  subsequent  parts  of  the 
series,  a  severance  of  pleading  may  take  place  in  respect  of 
.several  subjects  of  claim  or  complaint. 

Example  :  If  an  action  be  brought  for  trespasses  in  closes  A. 
and  B.,  and  the  defendant  pleads  a  single  matter  of  defence 
applying  to  both  closes,  the  plaintiff  is  still  at  liberty,  in  his  re- 
plication, to  give  one  answer  as  to  so  much  of  the  plea  as  applies 
to  close  A.,  and  another  answer  as  to  so  much  of  the  plea  as 
applies  to  close  B.* 

The  power,  however,  of  alleging  in  a  plea  distinct  matters, 
in  answer  to  such  parts  of  the  declaration  as  relate  to  differ- 
ent claims,  seems  to  be  subject  to  this  restriction  :  that  neither 
of  the  matters  so  alleged  be  such  as  would  alone  be  a  sufficient 
answer  to  the  whole. 

Example :  If  an  action  be  brought  on  two  bonds,  though  the 
defendant  may  plead,  as  to  one,  payment,  and  as  to  the  other, 
duress  ;  yet  if  he  pleads  as  to  one  a  release  of  all  actions,  and  as 
to  the  other  duress,  it  will  be  double  ;  for  the  release  is  alone  a 
sufficient  answer  to  both  bonds. ^ 

1  See  Bac.  Ab.  Pleas,  &c.  446,  5th  ed.         *  See   Johns   v.    Whitley,    3   Wils. 

2  Com.  Dig.  Pleader,  E.  2 ;  Co.  Litt.    132. 

304  a.  B  Doct.  PI.  13C  ;  Vin.  Ab.  tit.  Double 

8  Vin.  Ab.  tit.  Double  Pleas,  A.  115.    Pleas,  D.     In  Vmer,  however,  some 


RULES   TO   PRODUCE   SINGLENESS   OR   UNITY  IN   THE   ISSUE.      307 
Again,  if  there  he  acvp.rnl  rfj>fpnrlnnts^  jIp  t-ifjf  (laainst  rhiph'.nitif 

is  not  carried  Sofarjl^  to  fr>nrpel  on  fly  gf  thvm.  tn  mnhe  tlo  o'^imf 

answer  to  the  dedaratioti. 

Each  .defendant  is  at,  liberty  to  use  such  plea  as  he  may 
think  proper_for  his  own  defence,  and  they  may  either  join 
in  the  same  plea  or  sever,  at  their  discretion,^      But  if  the_^ 
defendants  have  once  united  in  the  plea,  they  can  not  afterward 
sever  at  the  rejoinder  or  other  later  sta^e  of  the  pleading;.^ 

Where,  as  to  several  subjects  or  several  defendants,  a 
severance  has  thus  taken  place  in  the  pleading,  this  may,  of 
course,  lead  to  a  corresponding  severance  in  the  whole  subse- 
quent series,  and,  as  the  ultimate  effect,  to  the  production  of 
several  issues.  And  where  there  are  several  issues,  they  may, 
respectively,  be  decided  in  favor  of  different  parties,  and  the 
judgment  will  follow  the  same  division. 

Such  being  the  nature  of  duplicity,  the  following  rules  will 
tend  to  its  further  illustration. 

(1^ (A  pleading  will  be  double  that  contains  several  answers,  \ 
tvhatever  be  the  class  or  quality  of  the  answer.J 

Example :  It  will  be  double  by  containing  several  matters  in 
abatement  or  several  matters  in_bar.^  or  by  containing  one  matter 
in  abatement  and  another  in  bar.^  So  a  pleading  will  be  double 
by  containing  several  matters  in  confession  and  avoidance,  or_ 


several  answers  by  way  oftraver^e,  or  by  combining  a  traverse 
with  a  matter  in  confession  and  avoidance.^ 

(2)    Matter  may  suffice  to  make  a  pleading  double,  though  it 
be  ill  pleaded. 

Example :  In  trespass  for  assault  and  battery,  the  defendant 
pleaded  that  he  committed  the  trespasses  in  the  moderate  correc- 

cases  are  cited  which  show  that  this  a  rejoinder  by  all  the  defendants  was 

restriction    has    not    been    uniformly  adjudged  to  be  bad.   (Morrow  y.  Belcher, 

observed,  or  is  at  least  open  to  several  4  Barn.  &  Cress.  704.) 
exceptions.  ^  Com.  Dig.  Pleader,  E.  2 ;  and  see 

1  Co.    Litt.    303   a  ;     Essington    v.  the  cases  already  cited  on  the  subject  of 
Boucher,   Ilob.   245.      It  is  said,  how-  duplicity. 

ever,  arfjuendo,  in  the  case  cited,  that         ♦  Semb.   Com.  Dig.  Pleader,  E.   2; 

they   cannot    sever    in    dilatory   pleas.  Bleke  v.  Grove,  1  Sid.  176. 
Sed qn.?     (See  Cuppledick  v.  Terwhit,         5  Com.  Dig.  Pleader,  E.  2;  Bac.  Ab. 

Hob.  2.50.)  Pleas,  &c.  K. ;  and  seethe  cases  already 

2  And    see    a  case   where,   upon   a  cited, 
replication  to  a  plea  by  one  defendant, 


/ 


308  COMMON-LAW   PLEADING. 

tion  of  the  plaintiff  as  his  servant,  and  further  pleaded,  that  since 
that  time  the  plaintiff  had  discharged  and  released  to  him  the 
said  trespasses,  without  alleging,  as  he  ought  to  have  done,  a 
release  under  seal.  The  court  held  that  this  plea  was  double, 
the  moderate  correction  and  the  release  being  each  a  matter  of 
defence  ;  and,  though  the  release  was  insufficiently  pleaded,  yet, 
as  it  was  a  matter  that  a  material  issue  might  have  been  taken 
upon,  it  sufficed  to  make  the  plea  double.-^ 

On  the  other  hand,  it  seems  that 

(3)  Matter  immaterial  can  not  operate  to  make  a  pleading 
double."^ 

Example :  In  an  action  by  the  executors  of  J.  G.  on  a  bond 
conditioned  that  the  defendant  should  warrant  to  J.  G.  a  certain 
meadow,  the  defendant  pleaded  that  the  said  meadow  was  copy- 
hold of  a  certain  manor,  and  that  there  is  a  custom  within  the 
manor,  that  if  the  customary  tenants  fail  in  payment  of  their 
rents  and  services,  or  commit  waste,  then  the  lord  for  the  time 
being  may  enter  for  forfeiture ;  and  that  the  said  J.  G.,  during 
his  life,  peaceably  enjoyed  the  meadow ;  which  descended  after 
his  death  to  one  B.,  his  son  and  heir;  who,  of  his  own  wrong, 
entered  without  the  admission  of  the  lord,  against  the  custom  of 
the  manor ;  and  because  three  shillings  of  rent  were  in  arrear  on 
such  a  day,  the  lord  entered  into  the  meadow,  as  into  lands  for- 
feited. On  demurrer,  it  was  objected  (among  other  things)  that 
the  plea  was  double ;  because,  in  showing  the  forfeiture  to 
have  accrued  by  the  heir's  own  wrongful  act,  two  several  matters 
are  alleged :  first,  that  he  entered  without  admission,  against  the 
custom;  secondly,  that  three  shillings  of  rent  were  in  arrear. 
But  the  judges  held,  that  the  only  sufficient  cause  of  forfeiture 
was  the  non-payment  of  rent ;  that,  there  being  no  custom  alleged 
for  forfeiture  in  respect  of  entry  without  admission,  the  averment 
of  such  entry  was  mere  surplusage,  and  could  not,  therefore,  avail 
to  make  the  plea  double.^ 

It  is,  however,  to  be  observed,  that  the  plea  in  this  last  case 
seems  to  rely  on  the  non-payment  of  the  rent  as  the  only 

1  Bac.  Ab.  Pleas,  &c.  K.  2  ;  Bleke  double,  though  only  one  of  the  matters 
i;.  Grove,  1  Sid.  175.  be  material.    (Calfer.  Nevil,  Poph.  186.) 

2  Bac.  Ab.  iihi  supra ;  1  Hen.  VII.  But  the  weight  of  the  authorities,  aud 
16  ;  Coimtess  of  Northumberland's  Case,  the  reason  of  the  thing,  are  opposed  to 
5  Co.  Rep.  98  a;  Case   of  the  Execu-  this  opinion. 

tors    of   Grenelefe,    Dy.    42  b  ;    Doct.         ^  Case  of  the  Executors  of  Grenelefe, 
PI.  138.     There  is,  however,  a  dictum    ubi  supra. 
of  Doddridge,  J.,  that  a  plea  may  be 


RULES   TO   PRODUCE   SINGLENESS   OR   UNITY   IN   THE   ISSUE.      309 

ground  of  forfeiture  ;  for  it  alleges  that,  "  because  three  shil- 
lings of  the  rent  were  in  arrear,  the  lord  entered  ; "  and  the 
court  noticed  this  circumstance.  The  case,  therefore,  does 
not  explicitly  decide,  that  where  two  several  matters  are  not 
only  pleaded,  but  relied  upon,  the  immateriality  of  one  of  them 
shall  prevent  duplicity ;  but  the  manner  in  which  the  judges 
express  themselves  seems  to  show  that  the  doctrine  goes  to 
that  extent ;  and  there  are  other  authorities  the  same  way.^ 

This  doctrine,  that  a  plea  may,.be  rendered  double  by  matter! 
illpleaded,  but  not  by  immaterial  matten.  quite  accords  with 
the  object  of  the  rule  against  duplicity,  as  formerly  explained. 
That  object  is  the  avoidance  of  several  issues.  Now,  whether 
a  matter  be  well  or  ill  pleaded,  yet  if  it  be  sufficient  in  sub- 
stance, so  that  the  opposite  party  may  go  to  issue  upon  it,  if 
he  chooses  to  plead  over,  without  taking  the  formal  objection, 
such  matter  tends  to  the  production  of  a  separate  issue,  and 
is  on  that  ground  held  to  make  the  pleading  double.  On  the 
other  hand,  if  the  matter  be  immaterial,  no  issue  can  properly 
be  taken  upon  it ;  it  does  not  tend,  therefore,  to  a  separate 
issue,  nor,  consequently,  fall  within  the  rule  against  duplicity. 

(4)  No  matter  will  operate  to  make  a  pleading  double  that  is 
pleaded  only  as  necessary  inducement  to  another  allegation. 

Example :  It  may  be  pleaded  without  duplicity  that,  after  the 
cause  of  action  accrued,  the  plaintiff  (a  woman)  took  husband, 
and  that  the  husband  afterwards  released  the  defendant ;  for, 
though  the  coverture  is  itself  a  defence,  as  well  as  the  release, 
yet  the  averment  of  the  coverture  is  a  necessary  introduction  to 
that  of  the  release.^ 

This  exception  to  the  general  rule  is  prescribed  by  an  evi- 
dent principle  of  justice  ;  for  the  party  has  a  right  to  rely 
on  any  single  matter  that  he  pleases  in  preference  to  another ; 
as  in  this  instance,  on  the  release,  in  preference  to  the  cover- 
ture ;  but  if  a  necessary  inducement  to  the  matter  on  which 
he  relies,  when  itself  amounting  to  a  defence,  were  held  to 
make  his  pleading  double,  the  effect  would  be  to  exclude  him 
from  this  right,  and  compel  him  to  rely  on  the  inducement  only. 

1  Bac.  Ab.  Pleas,  &c.  K.  2.  2  Bac.  Ab.  Pleas,  &c.  K.  2  ;  Com. 

Dig.  Pleader,  E.  2  ;  24  E.  III.  75  b. 


310  COMMON-LAW   PLEADING. 

(5)  No  matters,  however  multifarious,  will  operate  to  make  a  j 
pleading  double  that  together  constitute  hut  one  connected propo-X 
;  sitio7i  or  entire  point. 

Example :  To  an  action  for  assault  and  imprisonment,  if  the 
defendant  plead  that  he  arrested  the  plaintiff  on  suspicion  of 
felony,  he  may  set  forth  any  number  of  circumstances  of  sus- 
picion, though  each  circumstance  alone  may  be  sufficient  to  justify 
the  arrest;  for  all  of  them  taken  together  do  but  amount  to  one 
connected  cause  of  suspicion.^ 

Cumulative  Traverses. 

/       This  qualification  of  the  rule  against  duplicity  applies  not 

f     only  to  pleadings  in  confession  and  avoidance,  but  to  traverses 

also ;  so  that  a  man  may  deny  as  well  as  affirm,  in  pleading, 

any  number  of  circumstances  that  together  form  but  a  single 

point  or  proposition. 

Example  :  In  an  action  of  trespass  for  breaking  the  plaintiff's 
close  and  depasturing  it  with  cattle,  the  defendant  pleaded  a  right 
of  common  in  the  close  for  the  said  cattle,  being  his  own  com- 
monable cattle,  levant  and  couchant,  upon  the  premises.  The 
plaintiff,  in  the  replication,  traversed,  "  that  the  cattle  were  the 
defendant's  own  cattle,  and  that  they  were  levant  and  couchant 
upon  the  premises,  and  commonable  cattle."  On  demurrer  for 
duplicity,  it  was  objected  that  there  were  three  distinct  facts  put 
in  issue  by  this  replication,  any  one  of  which  would  be  sufficient 
by  itself ;  but  the  court  held  that  the  point  of  the  defence  was, 
that  the  cattle  in  question  were  entitled  to  common  ;  that  this 
point  was  single,  though  it  involved  the  three  several  facts,  that 
the  cattle  were  the  defendant's  own,  that  they  were  levant  and 
couchant,  and  that  they  were  commonable  cattle  ;  that  the  repli- 
cation traversing  these  facts,  in  effect,  therefore,  only  traversed 
the  single  point,  whether  the  cattle  were  entitled  to  common ; 
and  was,  consequently,  not  open  to  the  objection  of  duplicity.^ 

1  Vin.  Ab.  Double  Pleas,  A.  7,  cites  were  fixed)  is  destructive  of  the  funda- 
2  Ed.  IV.  8.  mental  aim  of  common-law  pleading, 

2  Eobinson  v.  Rayley,  1  Burr.  316.  that  of  bringing  the  parties  to  issue  on 
Upon  this  case  Mr.  Williston,  in  a  note  a  single  narrow  point.  Robinson  v, 
to  the  fifth  edition  of  Stephen  on  Plead-  Rayley  is  the  leading  case  for  the  allow- 
ing, comments  as  follows :  "  It  should  ance  of  such  traverses,  and  the  distinc- 
be  observed  that  the  allowance  of  cumu-  tiou  there  laid  down  by  Lord  Mansfield  is 
lative  traverses  (other  than  de  injuria,  'that  you  mu.st  take  issue  upon  a  single 
for  the  use  of  which  special  boundaries  point ;  but  it  is  not  necessary  that  this 


RULES  TO   PRODUCE   SINGLENESS   OR   UNITY  IN   THE  ISSUE,      oil 

The  most  frequent  instance  of  this  cumulative  traverse,  as  it 
may  be  called,  occurs  in  the  case  of  the  replication,  de  injuria 
absque  tali  causa.  This  replication  (it  will  be  recollected)  al- 
leges that  the  defendant  did  the  act  (the  subject  of  complaint) 
of  his  own  wrong,  and  "  without  the  cause  alleged  ;  "  and  this 
cause  frequently  consists  of  several  connected  circumstances. 
It  is,  however  (as  was  formerly  stated),  a  restriction  in  the  use 
of  this  replication,  that  it  can  not  be  applied  so  as  to  include  in 
the  traverse  any  matter  alleged  on  the  other  side  in  the  nature 
of  title.,  interest.,  commandment.,  authority.,  or  matter  of  record. 
If,  therefore,  any  such  matter  be  contained  in  the  plea,  and 
the  plaintiff  wishes  to  deny  it,  such  matter  must  be  traversed 
separately  ;  or,  if  he  chooses  not  to  point  the  denial  to  this, 
but  to  other  matters  in  the  plea,  these  other  matters  must 
separately  form  the  subject  of  traverse.  In  the  former  case, 
the  denial  is  in  the  words  of  the  allegation ;  in  the  latter,  the 
usual  form  is  to  plead  with  a  protestation,  and  a  traverse  de 
injuria  absque  residuo  causce,  thus  :  — 

"Protesting  that  the  said  C.  D.  is  not  seised,  etc.  For  repli- 
cation, nevertheless,  in  this  behalf,  the  said  A.  B.  says  that  tlie 
said  C.  D.,  of  his  own  wrong,  and  without  the  residue  of  the  cause 
in  his  said  plea  alleged,  brolie  and  entered  the  said  close,  etc."  ^ 

This  restriction,  by  which  matter  of  title,  intprcst^  cmn- 
mandment.,  authority,  or  record  is  rpgnirpd  to  bn  spparately 
traversed,  is  not  to  be  taken  as  applicable  merely  to  the 
use  of  the  replication  de  injuria^  but  extends  (it  is  conceived) 
in  its  principle  to  all  cases  of  cumulative  traverse,  so  that 
it  may  be  said  to  be  generally  true,  that  where  any  such 
matter  is  alleged  in  connection  with  other  circumstances, 
it  is  not  a  case  in  which  it  is  competent  to  the  other  party 

single  point  should   consist  only  of  a  gether.     This   consequence  was  never 

single    fact.      Here   the    point   is,   the  admitted,  nor  was   Robinson  v.  Raley 

cattle  being  entitled  to  common  ;   this  overruled,  but,  though  followed  in  some 

is  the  single  point  of  the  defence.'     But  recent  cases,   it   was   not   followed    in 

any  good  affirmative  plea  contains  but  a  others,   and,   though   distinctions  were 

single  point  of  defence.     If  it  contains  attempted,  the  cases  in  fact  seem  india- 

more,  it  is  double,  and  the  only  logical  tinguishable.     DeWolf  v.  Bevan,  13  M. 

consequence   of   Robinson  v.  Raley  is  &  W.  160;  Bonzi  u.  Stewart,  7  M.  &  G. 

that  all  the  material  facts  of  a  preceding  740." 
pleading  may  always  be  traversed  to-        i  See  the  precedent,  9  Went.  327. 


312  COMMON-LAW  PLEADING. 

to  traverse  cumulatively ;  ^  and  that,  if  he  include  all  these 
circumstances  in  the  same  traverse,  his  pleading  will  be 
double. 

In  some  cases  the  general  issues  appear  to  partake  of  the 
nature  of  these  cumulative  traverses.  For  some  of  them  are 
so  framed  as  to  convey  a  denial,  not  of  any  particular  fact, 
but  generally  of  the  whole  matter  alleged,  as  not  guilty  in 
trespass  or  trespass  on  the  case,  and  nil  debet  in  debt.  And 
in  assumjjsit  the  case  is  the  same  in  effect,  according  to  a 
relaxation  of  practice  formerly  explained,  by  which  the  de- 
fendant is  permitted,  under  the  general  issue,  in  that  action, 
to  avail  himself,  with  some  few  exceptions,  of  any  matter 
tending  to  disprove  his  liability.  The  consequence  is,  that 
under  these  general  issues  the  defendant  has  the  advantage  of 
disputing,  and  therefore  of  putting  the  plaintiff  to  the  proof  of 
every  averment  in  the  declaration.  Thus,  by  pleading  not 
guilty,  in  trespass  quare  clausum  f regit,  he  is  enabled  to  deny, 
at  the  trial,  both  that  the  land  was  the  plaintiff's  and  that  he 
committed  upon  it  the  trespasses  in  question,  and  the  plaintiff 
must  establish  both  these  points  in  evidence.  Indeed,  besides 
this  advantage  of  double  denial,  the  defendant  obtains,  under 
the  general  issue,  in  assumpsit  and  other  actions  of  trespass 
on  the  case,  the  advantage  of  double  lAeading  in  confession  and 
avoidance.  For,  upon  the  principles  formerly  explained,  he 
is  allowed,  in  these  actions,  to  bring  forward,  upon  the  general 
issue,  almost  any  matters  (though  in  the  nature  of  confession 
and  avoidance),  which  tend  to  disprove  his  debt  or  liability  ; 
so  he  is  not  limited  (as  he  would  be  in  special  pleading),  to  a 
reliance  on  any  single  matter  of  this  description,  but  may  set 
up  any  number  of  these  defences.  While  such  is  the  effect  of 
many  of  the  general  issues  in  mitigating  or  evading  the  rule 
against  duplicity,  the  remark  does  not  apply  to  all.  Thus, 
the  general  issue  of  7ion  est  factum  raises  only  a  single  ques- 
tion, namely,  whether  the  defendant  executed  a  valid  and 
genuine  deed,  such  as  is  alleged  in  the  declaration.  The 
defendant  may,  under  this  plea,  insist  that  the  deed  was  not 
executed  by  him,  or  that  it  was  executed  under  circumstances 

1  See  BuU.  N.  P.  93. 


RULES   TO    PRODUCE   SINGLENESS   OR   UNITY   IN   THE   ISSUE.      313 

which  absolutely  annul  its  effect  as  a  deed,  but  can  set  up  no 
other  kind  of  defence.  . 

(6)  A  protestation  will  not  make  the  pleading  double}  j 
A  protestation  (as  already  explained)  does  not  tend  to  issue 
in  the  action,  but  is  made  merely  to  reserve  to  the  party  the 
right  of  denying  or  alleging  the  same  matter  in  a  future  suit. 
It  consequently  can  not  fall  within  the  object  of  the  rule  against 
duplicity,  which  is,  to  avoid  a  plurality  of  issues. 

The  Use  op  Several  Counts. 

Having  explained  the  rule  against  duplicity  in  pleading, 
it  is  necessary,  in  the  next  place,  to  advert  to  certain  modes 
of  practice  by  which  the  effect  of  that  rule  is  materially 
qualified  and  evaded.  These  are,  the  use  of  several  counts 
and  the  allowance  of  several  pleas^  the  former  being  grounded 
on  ancient  practice,  the  latter  on  the  statute  4  Ann.  c.  16. 

First  shall  be  considered  the  subject  of  several  counts. 

Where  a  plaintiff  has  several  distinct  causes  of  action,  he 
is  allowed  to  pursue  them  cumulatively  in  the  same  original 
writ,  subject  to  certain  rules  which  the  law  prescribes,  as 
to  joining  such  demands  only  as  are  of  similar  quality  or 
character.^ 

Examples  :  He  may  join  a  claim  of  debt  on  bond  with  a  claim 
of  debt  on  simple  contract,  and  pursue  his  remedy  for  both  by 
the  same  original  writ  in  debt.  So,  if  several  distinct  trespasses 
have  been  committed,  these  may  all  form  the  subject  of  one 
original  writ  in  trespass  ;  but,  on  the  other  hand,  a  plaintiff  can 
not  join  in  the  same  suit  a  claim  of  debt  on  bond  and  a  complaint 
of  trespass,  these  being  dissimilar  in  kind. 

Where  a  plaintiff  thus  makes  several  demands  by  the  same 
writ,  his  course  of  proceeding  in  debt,  covenant,  and  detinue, 
and  the  real  and  mixed  actions,  where  the  writs  are  in  a 
simple  and  general  form,  is  merely  to  enlarge  his  claim  in 
point  of  sums  and  quantities ;  but  in  trespass,  and  trespass 
on  the  case,  where  the  form  is  more  special,  the  original  writ 
separately  specifies  each  subject  of  claim  or  complaint. 

1  Bl.  Com.  III.  311*.  2  xTpon  this  subject,  see  Bac.  Ab 

Actions,  C. 


^ 


314  COMMON-LAW  PLEADING. 

Examples :  If  tlie  action  be  brought  in  trespass  for  two  assaults 
and  batteries,  the  original  writ,  after  setting  forth  one,  proceeds 
to  detail  the  other.  And,  when  the  time  for  the  declaration 
arrives,  the  plaintiff,  in  all  forms  of  action,  sets  forth  in  the 
declaration,  separately,  each  different  subject  of  claim  or  com- 
plaint thus  put  together  in  the  same  writ.  So,  in  the  case  of 
proceeding  by  hill,  the  different  claims  or  complaints  are  sepa- 
rately brought  forward  in  the  bill  or  declaration,  care,  however, 
being  taken  to  join  only  such  as  might  have  been  jointly  claimed 
by  the  same  original. 

Such  different  claims  or  complaints  constitute  different 
parts  or  sections  of  the  declaration,  and  are  known  in  plead- 
ing by  the  description  of  several  counts. 

"When  several  counts  are  thus  used,  the  defendant  may, 
according  to  the  nature  of  his  defence,  demur  to  the  whole  ; 
or  plead  a  single  plea  applying  to  the  whole ;  or  may  demur 
to  one  count  and  plead  to  another ;  or  plead  a  several  plea  to 
each  count ;  and  in  the  two  latter  cases  the  result  may  be  a 
corresponding  severance  in  the  subsequent  pleadings,  and  the 
production  of  several  issues.  But,  whether  one  or  more  issues 
be  produced,  if  the  decision,  whether  in  law  or  fact,  be  in  the 
plaintiff's  favor,  as  to  any  one  or  more  counts,  he  is  entitled 
to  judgment  2^^^  taiito  (for  so  much),  though  he  fail  as  to  the 
remainder.! 

The  use  of  several  counts,  when  applied  to  distinct  causes 
of  action,  is  quite  consistent  with  the  rule  against  duplicity ; 
for  the  object  of  that  rule,  as  formerly  explained,  is  to  prevent 
several  issues  in  respect  to  the  same  demand  only  ;  there 
being  no  objection  to  several  issues  where  the  demands  are 
several. 

But  it  happens  more  frequently  than  otherwise  that,  when 
various  counts  are  introduced,  they  do  not  really  relate  to  dis- 
tinct claims,  but  are  adopted  merely  as  so  many  different 
forms  of  propounding  the  same  cause  of  action,  and  are  there- 
fore a  mere  evasion  of  the  rule  against  duplicity.  This  is  a 
relaxation  of  very  ancient  date,  and  has  long  since  passed,  by 
continual  sufferance,  into  allowable  and  regular  practice.     It 

1  See  Phillips  v.  Howgate,  5  Barn.  &  Aid.  220. 


RULES  TO   PRODUCE  SINGLENESS  OR  UNITY  IN  THE  ISSUE.      315 

takes  place  when  the  pleader,  in  drawing  the  declaration  or 
bill  in  any  action,  or  in  preparing  the  prcBcipe  for  an  orio-inal 
writ  in  trespass,  or  trespass  on  the  case,  after  having  set  forth 
his  case  in  one  aspect,  feels  doubtful  whether,  as  so  stated,  it 
may  not  be  insufficient  in  point  of  law,  or  incapable  of  proof 
in  point  of  fact;  and  at  the  same  time  perceives  another 
mode  of  statement,  by  which  the  apprehended  difficulty  may 
probably  be  avoided.  Not  choosing  to  rely  on  either  view  of 
the  case  exclusively,  he  takes  the  course  of  adopting  both; 
and  accordingly  inserts  the  second  form  of  statement  in  the 
shape  of  a  second  count,  in  the  same  manner  as  if  he  were 
proceeding  for  a  separate  cause  of  action.  If,  upon  the  same 
principle,  he  wishes  to  vary  still  further  the  method  of  allega- 
tion, he  may  find  it  necessary  to  add  many  other  succeeding 
counts  besides  the  second ;  and  thus,  in  practice,  a  great 
variety  of  counts  often  occurs  in  respect  to  the  same  cause 
of  action ;  the  law  not  having  set  any  limits  to  the  discre- 
tion of  the  pleader,  in  this  respect,  if  fairly  and  rationally 
exercised.' 

The  Object  of  using  Several  Counts. 


\ 


It  may  be  desirable,  however,  to  explain  more  particularly  in 
what  case,  and  with  what  objects,  resort  is  had  to  several  counts 
for  the  same  cause  of  action.     This  may  happen  either 

(1)  Where  the  state  of  facts  to  which  each  count  refers  is 
really  different,  or 

(2)  Where  the  same  state  of  facts  is  differently   repre-^ 
sented. 

(1)  An  instance  of  the  first  case  is  the  following 

Example :  In  an  action  of  debt  on  a  penal  bill,  whereby  the 
defendant  engaged  to  pay  £7,  as  penalty,  in  the  event  of  non- 
payment of  10s.  on  the  11th  of  June,  and  10s.  more  on  the  10th 
of  July,  and  10s.  every  three  weeks  after,  till  a  certain  sura  was 
satisfied,  let  it  be  supposed  that  the  plaintiff  complains  of  a  fail- 
ure in  payment  both  on  the  11th  June  and  10th  July.  Either 
failure  entitles  him  to  the  penal  sum  for  which  he  brings  the 

1  See  Meeke  v.  Oxlade,  1  N.  R.  289 ;  Brindloy  v.  Deniiet,  2  liiug.  184  ;  Nelson 
Gabell  v.  Shaw,  2  Chit.  Rep.  299;  v.  Griffiths,  ibid.  412;  1  Tidd,  667, 
Thomas  v.  Hanscoinbe,  1  Bing.  281 ;    8th  ed. 


316  COMMON-LAW  PLEADING. 

action ;  but,  if  he  states  them  both  in  the  same  count,  the  decla- 
ration, as  we  have  seen,  will  be  double.  The  case,  however,  may 
be  such  as  to  make  it  convenient  to  rely  on  both  defaults;  for 
there  may  be  a  doubt  whether  one  or  other  of  the  payments  were 
not  made,  though  it  may  be  certain  that  there  was  at  least  one 
default ;  and  if,  under  these  circumstances,  the  plaintiff  should 
set  forth  one  of  the  defaults,  and  the  defendant  should  take 
issue  upon  it,  he  might  defeat  the  action  by  proving  payment 
on  the  day  alleged,  though  he  would  have  been  unable  to  prove 
the  other  payment.  To  meet  this  difficulty,  the  pleader  might 
resort  to  two  counts.  The  first  of  these  would  set  forth  the 
penal  bill,  alleging  a  default  of  payment  on  the  11th  of  June ; 
the  second  would  again  set  forth  the  same  bill,  describing  it  as 
"  a  certain  other  bill,"  etc.,  and  would  allege  a  default  on  the 
10th  of  July.  The  effect  of  this  would  be,  that  the  plaintiff, 
at  the  trial,  might  rely  on  either  default,  as  he  might  then  find 
convenient. 

lu  this  instance,  the  several  counts  are  each  founded  on  a 
different  state  of  facts  (viz.,  a  different  default  in  payment), 
though  in  support  of  the  same  dem^d. 

(2)  But  it  more  frequently  happens  that  it  is  the  same  state 
of  facts  dfferently  represented  which  forms  the  subject  of 
different  counts. 

Example:  Where  a  man  has  ordered  goods  of  another,  and 
an  action  is  brought  against  him  for  the  price,  the  circumstances 
may  be  conceived  to  be  such  as  to  raise  a  doubt  whether  the 
transaction  ought  to  be  described  as  one  of  goods  sold  and  delivered, 
or  of  ivork  and  labor  done  ;  and,  in  this  case,  there  would  be  two 
counts,  setting  forth  the  claim  both  ways,  in  order  to  secure  a 
verdict,  at  all  events,  upon  one  of  them. 

Common  Monet-Counts. 

It  may  be  useful  to  observe  here  that,  upon  this  principle, 
the  counts  for  money  lent  and  advanced^  money  paid,  money 
had  and  received,  and  money  due  on  account  stated  (commonly 
called  the  money  counts),  are,  some  or  all  of  them,  generally 
inserted,  as  a  matter  of  course,  in  every  prcecipe,  declaration, 
or  bill  in  assumpsit,  though  the  cause  of  action  be  also  stated 
in  a  more  special  form  in  other  counts.  This  is  done  because 
it  often  happens  that,  when  the  special  counts  are  found 


I 


I 


EULES  TO   PRODUCE   SINGLENESS   OR   UNITY  IN  THE   ISSUE.      317 

incapable  of  proof  at  the  trial,  the  cause  of  action  will  resolve 
itself  into  one  of  these  general  pecuniary  forms  of  demand, 
and  thus  the  plaintiff  may  obtain  a  verdict  on  one  of  these 
money  counts,  though  he  fail  as  to  all  the  rest.  Again,  the 
same  state  of  facts  may  be  varied,  by  omitting,  in  one  count, 
some  matter  stated  in  another.  In  such  a  case  the  more 
special  count  is  used,  lest  the  omission  of  this  matter  should 
render  the  other  insufficient  in  point  of  law.  The  more 
general  count  is  adopted,  because,  if  good  in  point  of  law,  it 
will  relieve  the  plaintiff  from  the  necessity  of  proving  such 
omitted  matter  in  point  of  fact.  If  the  defendant  demur  to 
the  latter  count  as  insufficient,  and  take  issue  in  fact  on  the 
former,  the  plaintiff  has  the  chance  of  proving  the  matter 
alleged,  and  also  the  chance  of  succeeding  on  the  demurrer. 
If,  on  the  other  hand,  the  defendant  do  not  think  proper  to 
demur,  but  take  issue  in  fact  on  both,  the  plaintiff  will  have 
no  occasion  at  the  trial  to  rely  at  all  upon  the  former  count, 
but  will  succeed  by  merely  proving  the  latter. 

Whether  the  subjects  ^  several  counts  be  really  distinct 
or  identical,  they  must  always  purport  to  be  founded  on  dis- 
tinct causes  of  action,  and  not  to  refer  to  the  same  matter ; 
and  this  is  effected  by  the  insertion  of  such  words  as  "  other" 
"  the  further  sum"  etc.  This  is  evidently  rendered  neces- 
sary by  the  rule  against  duplicity,  which,  though  evaded,  as 
to  the  declaration,  by  the  use  of  several  counts,  in  the  man- 
ner here  described,  is  not  to  be  directly  violated.'^ 

The  Use  op  Several  Pleas. 

It  has  been  already  stated  that  the  rule  against  duplicity 
does  not  prevent  a  defendant  from  giving  distinct  answers  to 
different  claims  or  complaints  on  the  part  of  the  plaintiff. 
To  several  counts,  or  to  distinct  parts  of  the  same  count,  he 
may,  therefore,  plead  several  pleas,  viz.,  one  to  each.^ 

Example :  In  an  actiou  of  trespass  for  two  assaults  and  bat- 
teries, he  may  plead,  as  to  the  first  count,  not  guilty  ;  and  as  to 

1  Hart  V.  Longfield,  7  Mod.  148  ;  i^  Or  he  may  plead  to  one  count,  and 
West  V.  Troles,  1  Salk.  213 ;  Bac.  Ab.  demur  to  another.  And  it  seems  that, 
Pleas,  &c.  B.  in  pleading  different  pleas  to  different 


318  COMMON-LAW   PLEADING. 

the  second,  the  statute  of  limitations,  viz.,  that  he  was  not  guilty 
tvithin  four  years. 

But  it  may  also  happen  that  a  defendant  may  have  several 
distinct  answers  to  give  to  the  same  claim  or  complaint. 

Example :  To  an  action  of  trespass  for  two  assaults  and  bat- 
teries, he  may  have  ground  to  deny  both  the  trespasses,  and  also 
to  allege  that  they  were  neither  of  them  committed  within  four 
years. 

Anterior,  however,  to  the  regulation  which  will  be  presently 
mentioned,  it  was  not  competent  to  him  to  plead  these  several 
answers  to  both  trespasses,  as  that  would  have  been  an  in- 
fringement of  the  rule  against  duplicity.  The  defendant  was, 
therefore,  obliged  to  elect  between  his  different  defences, 
where  more  than  one  thus  happened  to  present  themselves, 
and  to  rely,  on  that  which,  in  point  of  law  and  fact,  he  might 
deem  strongest.  But  as  a  mistake  in  that  selection  might 
occasion  the  loss  of  the  cause,  contrary  to  the  real  merits 
of  the  case,  this  restriction  against  the  use  of  several  pleas 
to  the  same  matter,  after  being  for  ages  observed  in  its  origi- 
nal severity,  was  at  length  considered  contrary  to  the  true 
principles  of  justice,  and  was  accordingly  relaxed  by  legisla- 
tive enactment. 

The  statute  4  Ann.  c.  16,  s.  4,  provides  that  "  it  shall  be 
lawful  for  any  defendant  or  tenant,  in  any  action  or  suit,  or 
for  any  plaintiff  in  replevin,  in  any  court  of  record,  with  leave 
of  the  fiourt^  to  plead  as  many  several  matters  thereto  as  he 
shall  think  necessary  for  bis  defence.^'  Since  this  act  the 
course  has  been  for  the  defendant,  if  he  wishes  to  plead  sev- 
eral matters  to  the  same  subject  of  demand  or  complaint,  to 
apply  previously  for  a  rule  of  court  permitting  him  to  do  so ; 
and,  upon  this,  a  rule  is  accordingly  drawn  up  for  that  purpose.^ 

When  several  pleas  are  pleaded,  either  to  different  matters, 
or  (by  virtue  of  the  statute  of  Anne)  to  the  same  matter,  the 

parts  of  the  declaration,  the  defendant  (2  Saund.  209  e,  n.  1.)     And  see  Her- 

is   not  confined  to  pleas  of  the  same  ries  v.  Jamieson,  5  T.  R.  553. 

hind.     Thus,  it  is   laid  down  that  he  ^  But  the   court   have   a  discretion, 

may  plead   in  abatement  to  part,  and  either  to  permit  or  refuse,  according 

demur  or  plead  in  bar  to  the  residue,  to  the  nature  of  the  matters  proposed 


RULES   TO   PRODUCE   SINGLENESS   OR   UNITY   IN   THE   ISSUE.      319 

plaintiff  may,  according  to  the  nature  of  his  case,  either  demur 
to  the  whole,  or  demur  to  one  plea  and  reply  to  the  other,  or 
make  a  several  replication  to  each  plea ;  and,  in  the  two  latter 
cases,  the  result  may  be  a  corresponding  severance  in  the  sub- 
sequent pleadings,  and  the  production  of  several  issues.  But, 
whether  one  or  more  issues  be  produced,  if  the  decision, 
whether  in  law  or  fact,  be  in  the  defendant's  favor,  as  to 
any  one  or  more  pleas,  he  is  entitled  to  judgment,  though  he 
fail  as  to  the  remainder,  —  i.  e.,  he  is  entitled  to  judgment  in 
respect  of  that  subject  of  demand  or  complaint  to  which  the 
successful  plea  relates ;  and,  if  it  were  pleaded  to  the  whole 
declaration,  to  judgment  generally,  though  the  plaintiff  should 
succeed  as  to  all  the  other  pleas. 

Use  of  Several  Pleas  similar  to  that  of  Several 
Counts. 

By  a  relaxation  similar  to  that  which  has  obtained  with 
respect  to  several  counts,  the  use  of  several  pleas  (though' 
presumably  intended  by  the  statute  to  be  allowed  only  in  a 
case  where  there  are  really  several  grounds  of  defence)  ^  is,  in 
practice,  carried  much  further.  For  it  was  soon  found  that, 
when  there  was  a  matter  of  defence  by  way  of  special  plea,  it 
was  generally  expedient  to  plead  that  matter  in  company  with 
the  general  issue,  whether  there  were  any  real  ground  for 
denying  the  declaration  or  not ;  because  the  effect  of  this  is 
to  put  the  plaintiff  to  the  proof  of  his  declaration  before  it  can 
become  necessary  for  the  defendant  to  establish  his  special 
plea ;  and  thus  the  defendant  has  the  chance  of  succeeding, 
not  only  on  the  strength  of  his  own  case,  but  by  the  failure  of 
the  plaintiff's  proof.  Again,  as  the  plaintiff,  in  the  case  of 
several  counts,  finds  it  convenient  to  vary  the  mode  of  stating 
the  same  subject  of  claim,  so,  for  similar  reasons,  defendants 
were  led,  under  color  of  pleading  distinct  matters  of  defence, 
testate  variously, in  various  pleas,  the  same  defence, and  this, 
either  by  presenting  it  in  an  entirely  new  aspect,  or  by  omitting 
in  one  plea  some  circumstances  alleged  in  another.     To  this 

to  be  pleaded.  (Jenkins  v.  Edwards,  ^  See  Lord  Clinton  v.  Morton,  2  Str. 
5  T.  R.  97.)  1000. 


320  COMMON-LAW  PLEADING. 

extent,  therefore,  is  the  use  of  several  pleas  now  carried. 
Some  efforts,  however,  were  at  one  time  made  to  restrain  this 
apparent  abuse  of  the  indulgence  given  by  the  statute.  For 
that  leave  of  the  court  which  the  statute  requires  was  formerly 
often  refused  where  the  proposed  subjects  of  plea  appeared  to 
be  inco7isistent ;  and  on  this  ground  leave  has  been  refused  to 
plead  to  the  same  trespass  not  guilty  and  accord  and  satisfac- 
tion, or  nan  est  factum  and  'payment  to  the  same  demand.^  In 
modern  practice,  however,  such  pleas,  notwithstanding  the  ap- 
parent repugnancy  between  them,  are  permitted ;  ^  and  the  only 
pleas,  perhaps,  which  have  been  uniformly  disallowed,  on  the 
mere  ground  of  inconsistency,  are  those  of  the  general  issue 
and  a  tender? 

Statute  4  Ann.  c.  16,  s.  4,  does  not  extend  to  Replications 
OR  Subsequent  Pleadings. 

On  the  subject  of  several  pleas  it  is  to  be  further  observed, 
that  the  statute  extends  to  the  case  of  pleas  only,  and  not  to 
replications  or  subsequent  pleadings.  These  remain  subject  to 
the  full  operation  of  the  common  law  against  duplicity,  so  that, 
though  to  each  plea  there  may,  as  already  stated,  be  a  separate 
replication,  yet  there  can  not  be  offered  to  the  same  plea  more 
than  a  single  replication,  nor  to  the  same  replication  more 
than  one  rejoinder ;  and  so  to  the  end  of  the  series. 

The  legislative  provision  allowing  several  matters  of  plea 
was  confined  to  that  case,  under  the  impression,  probably,  that 
it  was  in  that  part  of  the  pleading  that  the  hardship  of  the 
rule  against  duplicity  was  most  seriously  and  frequently  felt, 
and  that  the  multiplicity  of  issues  (which  would  be  occasioned 
by  a  further  extension  of  the  enactment)  would  have  been 
attended  with  expense  and  inconvenience  more  than  equivalent 
to  the  advantage.  The  effect,  however,  of  this  state  of  law  is 
somewhat  remarkable. 

1  Com.  Dig.  Pleader,  E.  2.  ment ;  (2)  that  the  judgment  was  ob- 

2  Vide  1  Sell.  Pract.  299.  See  Rama  tained  by  fraud;  (3)  that  the  warrant 
Chittj  V.  Hume,  13  East,  255.  of  attorney  on  which   judgment   was 

^  But  the  Court  of  Common  Pleas    entered  was  obtained  by  fraud.    (Shaw 
refused  to  allow  the  defendant  in  scire    v.  Lord  Alvanley,  2  Bing.  325.) 
facias,  on  a  judgment,  to  plead,  (I )  pay- 


RULES  TO   PRODUCE  SINGLENESS   OR   UNITY  IN  THE   ISSUE.      321 

Examples :  It  empowers  a  defendant  to  plead  to  a  declaration 
in  asstcmpsit,  for  goods  sold  and  delivered,  (1)  the  general  issue  ; 
(2)  that  the  cause  of  action  did  not  accrue  within  six  years  ;  (3)  that 
he  was  an  infant  at  the  time  of  the  contract.  On  the  first  plea 
the  plaintilf  has  only  to  join  issue,  but  with  respect  to  each  of 
the  two  last  he  may  have  several  answers  to  give.  The  case  may 
be  such  as  to  afford  either  of  these  replications  to  the  statute  of 
limitations,  viz.,  that  the  cause  of  action  did  accrue  within  six 
years,  or  that  at  the  time  the  cause  of  action  accrued  he  was 
beyond  sea,  and  that  he  commenced  his  suit  within  six  years  after 
his  return.  So,  to  the  plea  of  infancy,  he  may  have  ground  for 
replying,  either  that  the  defendant  was  not  an  infant,  or  that  the 
goods  for  which  the  action  is  brought  were  necessaries  suitable 
to  the  defendant's  condition  in  life.  Yet,  though  the  defendant 
had  the  advantage  of  his  three  pleas  cumulatively,  the  plaintiff 
is  obliged  to  make  his  election  between  these  several  answers,  and 
can  reply  but  one  of  them  to  each  plea. 

Statute  does  not  apply  to  Dilatory  Pleas. 

It  is  also  to  be  observed,  that  the  power  of  pleading  several 
matters  extends  to  pleas  in  bar  only,  and  not  to  those  of  a  dila- 
tory class,  with  respect  to  which  the  leave  of  the  court  will  not 
be  granted.^ 

Again,  it  is  to  be  remarked,  that  the  statute  does  not  operate 
as  a  total  abrogation,  even  with  respect  to  pleas  in  bar,  of  the 
rule  against  duplicity.  For,  first,  it  is  necessary  (as  we  have 
seen)  to  obtain  the  leave  of  the  court  to  make  use  of  several 
matters  of  defence  ;  and  then  the  several  matters  are  pleaded 
formally,  with  the  words  "  by  leave  of  the  court  for  this  purpose 
first  had  and  obtained."  The  several  defences  must  also  each 
be  pleaded  as  a  new  qv  further  plea,  with  a  formal  commence- 
ment and  conclusion  as  such ;  so  that,  notwithstanding  the 
statute,  and  the  leave  of  the  court  obtained  in  pursuance  of  it 
to  plead  several  matters,  it  would  still  be  improper  to  incor- 
porate several  matters  in  one  plea  in  any  case  in  which  the 
plea  would  be  thereby  rendered  double  at  common  law. 

Effect  of  Pleading  Over. 
Such  are  the  nature  and  extent  of  the  rule  against  double 
pleading,  and  of  the  modifications  to  which,  in  practice,  it  is 

1  See  I  Sell.  Pract.  275. 
21 


322  COMMON-LAW   PLEADING. 

subject.  Under  this  rule,  it  remains  only  to  observe  that,  if, 
instead  of  demurring  for  duplicity,  the  opposite  party  passes 
the  fault  by,  and  j9?eac?s  over,  he  is,  in  that  case,  hound  to  an- 
swer each  matter  alleged  ;  and  has  no  right,  on  the  ground  of 
the  duplicity,  to  confine  himself  to  any  single  part  of  the 
adverse  statement.^ 

Rule  II.     It  is  not  allowable  both  to  plead  and  to    J^ 

DEMUR   TO   the    SaME   MaTTER.^ 

This  rule  depends  on  exactly  the  same  principles  as  the 
last.  As  it  is  not  allowable  to  plead  double,  lest  several  issues 
in  fact  in  respect  of  the  same  matter  should  arise,  so  it  is  not 
permitted  both  to  plead  and  demur  to  the  same  matter,  lest  an 
issue  in  fact  and  an  issue  in  law,  in  respect  of  a  single  subject, 
should  be  produced.  The  party  must,  therefore,  make  his 
election. 

The  rule,  however,  it  will  be  observed,  only  prohibits  the 
pleading  and  demurring  to  the  same  matter.  It  does  not 
forbid  this  course  as  applicable  to  distinct  statements.  Thus,  a 
man  may  plead  to  one  count,  or  one  plea,  and  demur  to  an- 
other. The  reason  of  this  distinction  is  sufficiently  explained 
by  the  remarks  already  made  on  the  subject  of  duplicity  in 
pleading. 

Lastly,  it  is  to  be  remarked,  that  the  statute  of  Anne,  which 
authorizes  the  pleading  of  several  pleas,  gives  no  authority  for 
demurring  and  pleading  to  the  same  matter.  The  rule  now 
in  question,  therefore,  is  not  affected  by  that  provision,  but 
remains  as  it  was  at  common  law.^ 

1  Bolton  V.  Cannon,  1  Vent.  272.  *  Haiton  v.  Jeffreys,  10  Mod.  280. 

2  Bac.  Ab.  Pleas,  &c.  K.  1. 


^ 


CHAPTER  XII. 

OF  EULES  WHICH  TEND  TO  PRODUCE  CERTAINTY   OR 
PARTICULARITY  IN  THE  ISSUE. 

The  rules  tending  to  certainty  in  the  pleadings,  and,  by  con- 
sequence, certainty  in  the  issue,  are  very  numerous,  and  in 
their  nature  do  not  easily  admit  of  methodical  arrangement ; 
but  an  enumeration  shall  here  be  attempted  of  such  of  them 
as  appear  to  be  of  principal  importance. 

Rule  I.    The  Pleadings  must  have  Certainty  of  Place.i 

Venue. 

It  has  been  explained  that  the  nature  of  the  trial  by  jury, 
while  conducted  in  the  form  which  first  belonged  to  that  insti- 
tution, was  such  as  to  render  particularity  of  place  absolutely 
essential  in  all  issues  which  a  jury  was  to  decide.  Consisting, 
as  the  jurors  formerly  did,  of  witnesses,  or  persons  in  some 
measure  cognizant  of  their  own  knowledge  of  the  matter  in 
dispute,  they  were  of  course,  as  a  rule,  to  be  summoned  from 
the  particular  place  or  neighborhood  where  the  fact  happened,^ 
and,  in  order  to  know  into  what  county  the  venire  facias  for 
summoning  them  should  issue,  as  well  as  to  enable  the  sheriff 
to  execute  that  writ,  it  was  necessary  that  the  issue,  and  there- 
fore the  pleadings  out  of  which  it  arose,  should  show  particu- 
larly what  that  place  or  neighborhood  was.^     Such  place  or 

1  fcom.  Dig.  Pleader,  C.  20 ;  Ibid,  therefore  the  written  contracts  bore 
Abatement,  H.  13;  Co.  Litt.  125  a.  date  at  a  certain  place."     (Gilb.  Hist. 

2  Co.    Litt.   by   Harg.    125  a,  n.   1.    C.  P.  84.) 

"The  venire  was  to  bring  up  the  pares         ^  Ilderton  v.  Ilderton,  2  H.  Bl.  161  ; 

(equals,  peers)  of  the  place  where  the  per  Lord  Mansfield,  Mostyn  r.  Fabrigas, 

fact  was  laid,  in  order  to  try  the  issue ;  Cowp.  176  ;  Co.  Litt.  125  a,  b.     See  2 

and  originally  every  fact  was  laid  in  the  Hen.  VII.  4. 
place  where  it  waa  really  done;    and 


324  COMMON-LAW  PLEADING. 

neighborhood  was  called  the  venue,  or  visne  (from  vicinetum)^ 
and  the  statement  of  it  in  the  pleadings  obtained  the  same 
name ;  to  allege  the  place  being,  in  the  language  of  pleading, 
to  lay  the  venue. 

The  Venue  of  the  Action. 

The  present  law  of  venue  may  be  stated  as  follows  :  — 
The  original  writ  ^^■\^^Rt  hp.  rlirpctef]  to  the  sheriff  of  some 
county ;  and  in  that  county  th.Q  action  is  said  to  hp  hrovrjM 
or  laid.  Each  affirmative  traversable  allegation  in  the  writ 
is  to  be  laid  with  a  venue  or  place,  comprising  not  only  the 
county  in  which  the  fact  occurred,  but  the  parish.,  town?  qv 
hamlet  within  the  county ;  ^  but  in  a  mere  denial,  of  course, 
rio_v enue  is  to  be  used^  nor  is  any  required  in  respect  of  facts 
not  traversable  ;  for  example,  matter  of  inducement  or  aggra- 
vation.* The  pleader  has  his  election  to  lay  either  the 
parish,  the  town,  or  the  hamlet ;  but  a  more  extensive  division 
than  a  parish  (for  example,  a  hundred)  is  not  a  sufficient 
venue;  that  having  apparently  been  considered,  in  ancient 
times,  as  too  large  an  allegation  of  place  to  instruct  the 
sheriff  properly  as  to  the  summoning  of  the  jurors.^  Of  the 
different  facts  alleged  in  the  writ,  it  is  necessary  that  some 
principal  one,  at  least,  should  be  laid  in  some  parish,  town,  or 
hamlet,  within  the  county  in  which  the  action  is  brought,  in 
order  to  justify  the  bringing  of  the  action  in  that  county ,6  and 

1  Bac.  Ab.  Visne  or  Venue,  A.;  Bl.  comitatus  (from  the  body  of  the 
Com.  m.  294*.  county). 

2  A  town  is,  in  pleading,  otherwise  *  Com.  Dig.  Pleader,  C.  20,  cites 
called  vill     (Bl.  Com.  L  114*.)     See  PI.  Com.  190  b. 

Curwen  v.  Salkeld,  3  East,  5.38,  5  Co.  Litt.  by   Harg.  125,  n.  1.     If 

3  Co.  Litt.  125  a;  Com.  Dig.  Abate-  the  fact  happened  out  of  any  parish, 
ment,  H.  13;  ibid.  Pleader,  C.  20;  town,  or  hamlet,  but  in  some  other 
Braddish  v.  Bishop,  Cro.  Eliz.  260 ;  known  place,  such  as  a  forest,  or  the 
The  King  v.  Holland,  per  Buller,  J.,  5  like,  such  knoicn  place  may  be  laid  for 
T.  R.  620;  Amory  v.  Brodrick,  5  Barn.  ve7iue.  (Co.  Litt.  125  a,  b;  Bac.  Ab. 
&Ald.  712.  But  in  Ware  v.  Boydell,  Visne,  E.  in  marg.)  And  if  it  happened 
3  M.  &-S.  148  (which  was  an  action  on  out  of  any  parish,  town,  hamlet,  or 
a  promissory  note),  the  court  held  it  Z;"0!m  p/ace,  the  (.-eH!*?  may  be  laid  in  the 
sufficient  to  allege  a  county  for  i-emte,  county  generally.     (Bac.Ab.  ibid.) 

in  the  declaration,  without  a  parish,  e  pee  The  King  v.  Burdett,  4  Barn, 
because  the  jury  now  come  de  corpore    &  Aid.  175,  176.     Cah-in's  Case,  7  Co. 

Eep.  1 ;  Scott  v.  Brest,  2  T.  R.  238. 


RULES  TO  PRODUCE   CERTAINTY   IN   THE  ISSUE.  325 

such  county,  and  the  particular  place  so  laid  within  it,  are  called 
the  venue  in  the  action  or  the  venue  where  the  action  is  laid. 

Venue  op  the  Traversable  Allegations. 

As  the  declaration  conforms  to  the  writ  in  other  particulars, 
so  it  adheres  of  necessity  to  the  same  venue.  The  county 
where  the  action  is  laid  is  placed  at  the  commencement,  in 
the  margin  of  the  declaration ;  and  all  the  different  afhrmative 
traversable  allegations  are  to  be  laid  with  a  venue  of  parish, 
town,  or  hamlet,  as  well  as  county,  in  the  same  manner  as 
above  explained  with  regard  to  the  writ,  and  in  accordance 
with  that  instrument. 

In  proceedings  by  bill,  the  law  of  venue  is  exactly  the  same 
as  that  already  described,  subject  only  to  the  difference  neces- 
sarily introduced  by  the  absence  of  the  original  writ,  the  only 
effect  of  which  is,  that  the  declaration,  instead  of  the  original, 
first  determines  where  the  action  is  laid,  and,  as  in  proceed- 
ings by  original  the  action  is  said  to  be  brought  or  laid  in  the 
county  into  which  the  writ  issues,  so,  in  proceedings  by  bill,  it  is 
said  to  be  brought  or  laid  in  the  county  named  in  the  margin 
of  the  declaration.  Again,  as  in  proceedings  by  original,  the 
county  into  which  the  writ  issues,  and  the  place  within  that 
county  at  which  the  principal  fact  is  laid,  are  called  the  venue 
in  the  action,  so,  in  proceedings  by  bill,  the  same  term  applies 
to  the  county  in  the  margin  of  the  declaration,  and  the  place 
within  that  county  laid  to  the  principal  fact. 

Whether  the  action  be  by  original  or  by  bill,  the  plea,  repli- 
cation, and  subsequent  pleadings  lay  a  venue  to  each  affirma- 
tive traversable  allegation,  according  to  the  principles  already 
stated,  until  issue  joined. 

It  having  been  stated  that  the  original  object  of  thus  laying 
a  venue  was  to  determine  the  place  from  which  the  venire 
facias  should  direct  the  jurors  to  be  summoned,  in  case  the 
parties  should  put  themselves  upon  the  country,  it  will  be 
proper  now  to  consider  how  far  the  same  use  is  made  of  the 
venue  in  modern  practice.  And,  in  order  to  explain  clearly 
the  existing  law  on  this  subject,  it  will  be  convenient  to  take 
a  short  retrospect  of  its  former  state  and  progress. 


326  COMMON-LAW  PLEADING. 


Ancient  Use  op  the  Venue. 

The  most  ancient  practice,  as  established  at  the  period  when 
juries  were  composed  of  persons  cognizant  of  their  own  knowl- 
edge of  the  fact  in  dispute,  was,  of  course,  to  summon  the  jury 
from  that  venue  which  had  been  laid  to  the  particular  fact  in 
issue,  and  from  the  venue  of  parish,  toion,  or  hamlet,  as  well  as 
county  .1 

Examples :  (1)  In  an  action  of  debt  on  bond,  if  the  declaration 
alleged  the  contract  to  have  been  made  at  Westminster,  in  the 
County  of  Middlesex,  and  the  defendant,  in  his  plea,  denied  the 
bond,  issue  being  joined  on  this  plea,  it  would  be  tried  by  a  jury 
from  Westminster. 

(2)  If  he  pleaded  an  affirmative  matter,  as,  for  example,  a 
release,  he  would  lay  this  new  traversable  allegation  with  a 
venue ;  and,  if  this  venue  happened  to  differ  from  that  in  the 
declaration,  being  laid,  for  example,  at  Oxford,  in  the  County  of 
Oxford,  and  issue  were  taken  on  the  plea,  such  issue  would  be 
tried  by  a  jury  from  Oxford,  and  not  from  Westminster.'* 

And  it  may  here  be  incidentally  observed,  that  as  the  place 
or  neighborhood  in  which  the  fact  arose  and  also  the  allega- 
tion of  that  place  in  the  pleadings  were  called  the  venue,  so  the 
term  was  often  applied  to  the  jury  summoned  from  thence. 
Thus,  it  would  be  said  in  the  case  last  supposed  that  the  venue 
was  to  come  from  Oxford.  With  respect  to  the  form  of  the 
venire  at  this  period,  it  was  as  follows:  venire  facias  duodecim 
liberos  et  legates  homines,  de  vicineto  de  W.  for  O.J,  (i.  e.,  the 
parish,  town,  or  hamlet),  per  quos  rei  Veritas  melius  sciri 
poterit,  etc.  (you  shall  cause  to  come  twelve  free  and  legal 
men,  from  the  neighborhood  of  W..  through  whom  the  truth 
of  the  matter  may  be  the  better  known).^ 

1  Co.  Litt.  125  a;  Bac.  Ab.  Visne  or  of  Bracton)  per  quos  rei  Veritas  melius 
Venue,  E. ;  and  see  an  illustrative  case,  sciri  poterit,  &c.  Bract.  309  b,  310  a, 
43  Ed.  III.  1.  396  b,  397  a.     In  the  statute  27  Eliz.  c. 

2  Ctaft  V.  Boite,  1  Saund.  246  b  ;  6,  sec.  1,  the  form  is,  12  liberos  et  legales 
Com.  Dig.  Action,  N.  12;  8  Ed.  III.  8  homines  de  vicineto  tie  B.,  per  quos  rei 
pi.  20  ;  45  Ed.  III.  16.  Veritas,  &c. ;  and  see  Litt.  sec.  234. 

8  De  vicineto  tali  (is  the  expression 


rules  to  produce  certainty  in  the  issue.         327 

Changes  in  Practice  as  to  Venue. 

While  such  appears  to  have  been  the  most  ancient  state  of 
practice,  it  soon  sustained  very  considerable  changes.  When 
the  jury  began  to  be  summoned  no  longer  as  witnesses,  but  as 
judges,  and,  instead  of  being  cognizant  of  the  fact  on  their  own 
knowledge,  learned  the  fact  from  the  testimony  of  others 
judicially  examined  before  them,  the  reason  for  summoning 
them  from  the  immediate  neighborhood  ceased  to  apply,  and 
it  was  considered  as  sufficient  if,  by  way  of  partial  conformity 
with  the  original  principle,  a  certain  number  of  the  jury  came 
from  tlie  same  hundred  in  which  the  place  laid  for  venue  was 
situate,  though  their  companions  should  be  of  the  county 
only,  and  neither  of  the  venue  nor  even  of  the  hundred.  This 
change  in  the  manner  of  executing  the  venire  did  not,  how- 
ever, occasion  any  alteration  in  its  form^  which  still  directed 
the  sheriff,  as  in  former  times,  to  summon  the  whole  jury  from 
the  particular  venue}  The  number  of  hundredors  which  it 
was  necessary  to  summon  was  different  at  different  periods ; 
in  later  times  no  more  than  two  hundredors  were  required  in 
a  personal  action.^ 

Changes  in  Law  op  Venue. 

In  this  state  of  the  law  was  passed  the  statute  16  and  17 
Car.  II.  c.  8.  By  this  act  (which  is  one  of  the  statutes  of 
jeofails)  it  is  provided,  "  that  after  verdict  judgment  shall  not 
be  stayed  or  reversed,  for  that  there  is  no  right  venue,  so  as 
the  cause  were  tried  by  a  jury  of  the  proper  county  or  place 
where  the  action  is  laid.^'  This  provision  was  held  to  apply  to 
the  case  (among  others)  where  issue  had  been  taken  on  a  fact 
laid  with  a  different  ve7iue  from  that  in  the  action,  but  where 
the  venire  had  improperly  directed  a  jury  to  be  summoned 
from  the  venue  in  the  action,  instead  of  the  venue  laid  to  the 
fact  in  issue?  This  had  formerly  been  matter  of  error,  and, 
therefore,  ground  for  arresting  or  reversing  the  judgment ;  * 

1  27  Eliz.  c.  6,  s.  1  ;  Litt.  sec.  234.  n.  3  ;   Bowyer's  Case,  Cro.  Eliz.  468  ; 

2  27  p:iiz.  c.  6,  s.  5.  Eden's  Case,  6  Co.  Rep.  15  b;  Co,  Litt. 

3  Craft  V.  Boite,  1  Saund.  247.  by  Harg,  125  a,  u.  1. 
*  1  Saund.   247,  n.  1 ;    2  Saund.  5, 


328  COMMON-LAW  PLEADING. 

but  by  this  act  (passed  with  a  view  of  removing  what  had 
become  a  merely  formal  objection)  the  error  was  cured,  and 
the  staying  or  reversal  of  the  judgment  disallowed. 

While  such  was  its  direct  operation,  it  has  had  a  further 
effect,  not  contemplated,  perhaps,  by  those  who  devised  the 
enactment.  For  what  the  statute  only  purported  to  cure  as 
an  error,  it  has  virtually  established  as  regular  and  uniform 
practice  ;  and  issues  taken  on  facts  laid  with  a  different  venue 
from  that  iii  the  action  have,  for  a  long  time  past,  been  con- 
stantly tried,  not  by  a  jury  of  the  venue  laid  to  the  fact  in 
issue,  but  by  a  jury  of  the  venue  in  the  action} 

Another  change  was  introduced  by  the  statute  4  Ann.  c.  16, 
sec.  6.  This  act  provides  that  "  every  venire  facias  for  the 
trial  of  any  issue  shall  be  awarded  of  the  body  of  the  proper 
county  where  such  issue  is  triable,"  instead  of  being  (as  in 
the  ancient  form)  awarded  from  the  particular  venue  of  parish, 
town,  or  hamlet.  From  this  time,  therefore,  the  form  of  the 
venire  has  been  changed,  and  directs  the  sheriff  to  summon 
twelve  good  and  lawful  men,  etc,  '■'•from  the  body  of  his 
county;^'*  and  they  are  accordingly,  in  fact,  all  summoned 
from  the  body  of  the  county  only,  and  no  part  of  them  neces- 
sarily from  the  hundred  in  which  the  particular  place  laid  for 
venue  is  situate.^ 

MoDEEN  Rule  as  to  Venue. 

On  the  whole,  then,  by  the  joint  effect  of  these  two  statutes, 
the  venire^  instead  of  directing  the  jury  to  be  summoned  from 
that  venue  which  had  been  laid  to  the  fact  in  issue,  and  from 
the  venue  oi  jJarish,  town,  or  hamlet,  as  well  as  county,  now 
directs  them,  in  all  cases,  to  be  summoned  from  the  body  of 
the  county  in  ivhich  the  action  is  laid,  whether  that  be  the 
county  laid  to  the  fact  in  issue  or  not,  and  without  regard  to 
the  parish,  town,  or  hamlet. 

1  2  Savind.  5,  n.  3.  any  particular  venue,  within  the  county, 

2  And  even  in  criminal  proceedings  and  that  the  want  of  hundredors  shall 
it  is  now  expressly  enacted,  that  no  be  no  cause  of  challenge.  (6  Geo.  IV. 
jurors  shall  be  required  to  be  returned  c.  50,  sec.  13.) 

from  any  hundred  or  hundreds,  or  from 


rules  to  produce  certainty  in  the  issue.         329 

When  Venue  must  be  truly  laid. 

What  has  been  hitherto  said  on  the  subject  of  venue  relates 
only  to  the  form  in  which  the  venue  is  laid  and  its  effect  as  to 
the  venire.  There  is,  however,  another  very  important  point 
still  remaining  to  be  considered,  viz.,  how  far  it  is  necessary 
to  lay  the  venue  truly. 

Before  the  change  in  the  constitution  of  juries  above  men- 
tioned, the  venue  was  of  course  always  to  be  laid  in  the  true 
place  where  the  fact  arose,  for  so  the  reason  of  the  law  of 
venue  evidently  required.  But  when,  in  consequence  of  that 
change,  this  reason  ceased  to  operate,  the  law  began  to  dis- 
tinguish between  cases  in  which  the  truth  of  the  venue  was 
material,  or  of  the  substance  of  the  issue,  and  cases  in  which 
it  was  not  so.  A  difference  began  now  to  be  recognized 
between  local  and  transitory  matters.  The  former  consisted 
of  such  facts  as  carried  with  them  the  idea  of  some  certain 
place,  comprising  all  matters  relating  to  the  realty,  and  hardly 
any  others ;  the  latter  consisted  of  such  facts  as  might  be 
supposed  to  have  happened  anywhere ;  and,  therefore,  com- 
prised debts,  contracts,  and  generally  all  matters  relating  to 
the  person  or  personal  property.  With  respect  to  the  former, 
it  was  held,  that  if  any  local  fact  were  laid  in  pleading  at  a 
certain  place,  and  issue  were  taken  on  that  fact,  the  place 
formed  part  of  the  substance  of  the  issue,  and  must,  there- 
fore, be  proved  as  laid,  or  the  party  would  fail  as  for  want  of 
proof.  But  as  to  transitory  facts,  the  rule  was,  that  they 
might  be  laid  as  having  happened  at  one  place,  and  might  be 
proved  on  the  trial  to  have  occurred  at  another.^ 

The  present  state  of  the  law,  with  respect  to  the  necessitv 
of  laying  the  true  venue,  is  accordingly  as  follows :  — 

Local  and  Transitory  Actions. 
Actions  are  either  local  or  transitory. 
An  action  is  local,  if  all  the  principal  facts  on  which  it  is' 
founded  be  local. 

An  action  is  transitory,  if  any  principal  fact  be  of  the 
transitory  kind. 

1  Vin.  Ab.  Trial,  M.  f ;  Co.  Litt.  282  a. 


330  COMMON-LAW  PLEADING. 

In  a  local  action,  the  plaintiff  must  lay  the  venue  in  the  action 
trull/.  In  a  transitory  one,  he  may  lay  it  in  any  county,  and 
any  parish,  town,  or  hamlet  within  the  county,  that  he  pleases. 

Facts  arising  out  of  the  Realm. 

From  this  state  of  the  law,  it  follows,  first,  that  if  an  action 
be  local,  and  the  facts  arose  out  of  the  realm,  such  action  can 
not  be  maintained  in  the  English  courts ;  ^  for,  as  the  venue  in 
the  action  is  to  be  laid  truly,  there  is  no  county  into  which, 
consistently  with  that  rule,  the  original  writ  can  be  directed. 
But,  on  the  other  hand,  if  the  action  be  transitory,  then, 
though  all  the  facts  arose  abroad,  the  action  may  be  main- 
tained in  England ;  because  the  ve^iiie  in  the  action  may  be 
laid  in  any  English  county,  at  the  option  of  the  plaintiff. 

Change  op  Yenue. 

The  same  state  of  law  also  leads  to  the  following  inference  : 
that,  in  a  transitory  action,  the  plaintiff  may  have  the  action 
tried  in  any  county  that  he  pleases  ;  for  (as  we  have  seen)  he 
may  lay  the  venue  in  the  action  in  any  county,  and  upon  issue 
joined  the  venire  issues  into  the  county  where  the  venue  in  the 
action  is  laid.  And  such,  accordingly,  is  the  rule,  subject  only 
to  a  check  interposed  by  another  regulation,  viz.,  that  which 
relates  to  the  changing  of  the  venue.  The  courts  established, 
about  the  reign  (as  it  is  said)  of  James  I.,^  a  practice,  by  which 
defendants  were  enabled  to  protect  themselves  from  any  in- 
convenience they  might  apprehend  from  the  venue  being  laid 
contrary  to  the  fact,  and  to  enforce,  if  they  pleased,  a  compli- 
ance with  the  stricter  and  more  ancient  system.  By  this  prac- 
tice, when  the  plaintiff  in  a  transitory  action  laysa/aZse  venue, 
the  defendant  is  entitled  to  move  the  court  to  have  the  venue 
changed,  i.  e.,  altered  to  the  right  place  ;  and  the  court,  upon 
affidavit  that  the  cause  of  action  arose  wholly  in  the  county  to 
which  it  is  proposed  to  change  the  venue,  will  in  most  cases 
grant  the  application,  and  oblige  the  plaintiff  to  amend  his 
declaration  in  this  particular,  unless  he,  on  the  other  hand, 

1  Per  Buller,  J.,  Doulson  v.  Mat-        2  Knight  v.  Farnaby,  2  Salk.  670. 
thews,  4  T.  R.  503. 


EULES   TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  331 

will  undertake  to  give,  at  the  trial,  some  material  evidence 
arising  in  the  county  where  the  venue  was  laid. 

Venue  of  Local  Facts  must  be  truly  laid. 

Whether  the  action  be  local  or  transitory,  every  local  fact' 
alleged  in  the  writ  and  declaration  must  still  be  laid  with  itsj 
true  venue,  on  peril  of  a  variance,  if  the  fact  should  be  brought', 
in  issue  ;  but  transitory  facts  may  be  laid  with  any  venue,  at 
the  choice  of  the  plaintiff ;  though  it  is  the  usual  and  most 
proper  course  to  lay  all  these  with  the  venue  in  the  action.  As 
in  the  writ  and  declaration,  so  in  the  plea  and  subsequent 
pleadings,  every  local  fact  must  be  laid  with  its  true  venue, 
under  peril  of  variance. 

Transitory  Facts  must  be  laid  with  the  Venue  of  the 

Action. 

With  respect  to  transitory  facts,  the  rule  is,  that  they  must  be 
laid  with  the  venue  in  the  action  ;  ^  and  even  to  lay  the  true  place 
is,  in  this  case,  not  allowable,  if  it  differ  from  that  venue. 

Example :  In  the  case  of  an  action  ou  a  bond,  where  the  action 
is  laid  in  Middlesex,  if  the  defendant  should  plead  a  release  at 
Oxford,  this  departure  from  the  venue  in  the  action,  would  be 
bad,^  though  the  release  should  really  have  been  executed  there. 
For  as  the  plaintiff  may,  for  a  transitory  matter,  choose  any  venue 
that  he  likes,  in  his  writ  and  declaration,  so,  upon  the  same  prin- 
ciple, it  would  have  followed,  that  the  defendant  might  also,  for 
a  transitory  matter,  have  chosen  any  venue  in  his  plea ;  and  thus, 
who  ever  happened  to  make  the  last  affirmative  allegation,  and, 
therefore,  to  lay  the  last  venue,  would  have  been  able  (prior  to 
the  alteration  of  practice  introduced  by  the  statute  of  Charles  II.), 
to  draw  the  venire  facias  and  the  trial  to  any  place  that  he  pleased. 
But  it  was  thought  more  reasonable  and  convenient  that  this 
option  should  rest  with  the  plaintiff,  who,  having  in  the  first 
instance  chosen  a  venue,  ought  not  to  be  removed  from  it  without 
cause. 

The  defendant,  therefore,  is  obliged  to  follow  the  venue 
that  the  plaintiff  has  laid  ;  and,  in  consequence  of  the  estab- 

1  Wright  V.  Ramscot,  1  Saund.  85 ;         2  Co.  Litt.  282  b. 
2  Sauud,  5,  n.  3. 


832  COMMON-LAW  PLEADING. 

lishment  of  this  rule,  it  seems  now  to  be  held  that,  to  transitory 
matters,  no  venue  need  now  be  laid  in  pleadings  subsequent  to 
the  declaration,  because,  with  respect  to  every  matter  of  this 
description,  the  original  venue  will  be  taken  to  be  implied.^ 
In  practice,  however,  it  is  usual  to  lay  a  venue  in  these  as  well 
as  in  the  declaration  ;  and,  perhaps,  in  point  of  strict  form,  it 
is  the  better  course. 

Allegations  under  a  Videlicet. 
Another  point  to  be  noticed  on  this  subject  of  the  true  alle- 
gation of  venue,  is,  that  when  transitory  matters  are  alleged 
out  of  their  true  place,  it  seems  to  be  necessary  that  they 
should  be  laid,  as  the  phrase  is,  under  a  videlicet,  i.  e.,  with 
the  prior  intervention  of  the  words  "  to  wit,"  or  "  that  is  to 
8ai/."  The  effect  and  object  of  the  videlicet  are  to  mark  that 
the  party  does  not  undertake  to  prove  the  precise  place.  And, 
accordingly,  there  is  some  doubt  whether  the  omission  of  a 
videlicet  does  not  occasion  a  necessity,  in  the  event  of  a  traverse 
even  of  a  transitory  matter,  of  proving  the  place  alleged. ^  On 
the  other  hand,  however,  it  is  clear,  that  where  the  place  is 
material,  or,  in  other  words,  where  the  matter  is  local,  the 
use  of  a  videlicet  will  not  prevent  the  necessity  of  proving  the 
venue  laid.  This  doctrine  as  to  a  videlicet,  it  will  be  observed, 
is  not  peculiar  to  venue,  but  applies  (as  will  afterward  appear) 
to  many  other  of  the  points  on  which  certainty  is  required  in 
pleading. 

how  to  allege  local  matter  occurring  out  of  the 

Realm. 

The  last  point  of  remark  that  occurs  on  this  subject,  relates 
to  the  case  where  a  local  matter,  occurring  out  of  the  realm,  is 
alleged  in  the  course  of  the  pleading.  This  was  formerly 
considered  as  a  case  of  difficulty :  for,  on  the  one  hand,  all 
local  facts  are  to  be  alleged  (as  has  been  shown)  in  the  true 

1  Chit.  PL  248.  68;   Arnfield  v.  Bate,  3  M.  &  S.  173; 

2  Mr.  Chitty  inclines  to  consider  the  2  Saund.  291  c,  n.  1 ;  Bray  r.  Freemen, 
omission  as  immaterial.  (See  Chit.  PI.  2  J.  B.  Moore,  114;  Corporation  of 
276,  n.  g. )  Opposed,  however,  to  the  Arundel  v.  Bowman,  ibid.  93  ;  Crispin 
authorities  on  which  the  learned  author  v.  Williamson,  8  Taunt.  107;  Draper  v. 
relies,  ai-e  Symmons  v.  Knox,  3  T.  R.  Garratt,  2  Barn.  &  Cress.  2. 


RULES  TO  PRODUCE  CERTAINTY  IN   THE  ISSUE.  333 

place,  and,  on  the  other  hand,  if  a  place  out  of  the  realm  be 
laid  for  venue,  and  issue  be  joined  on  the  fact,  it  was,  at  one 
time,  supposed  that  the  issue  could  not  be  tried,  because  no 
jury  could  be  summoned  from  the  place  ;  and  prior  to  the 
statute  of  Charles,  it  was,  by  the  general  rule,  essential  (as 
already  stated)  that  the  jury  should  be  summoned  from  the 
venue  laid  to  the  fact  in  issue.^  It  was,  however,  early  decided, 
that  notwithstanding  that  general  rule,  such  matter  might  be 
tried  by  a  jury  from  the  venue  in  the  action?  And,  by  way  of 
more  effectually  preventing  the  objection,  a  form  has  long 
been  in  use,  which  satisfies  the  double  object  of  conforming 
to  the  true  place,  and,  at  the  same  time,  laying  a  venue 
within  the  realm;  the  venue  of  a  fact  arising  abroad  being 
often  alleged  with  a  videlicet,  under  the  following  form  of 
expression  :  "  In  parts  heyojid  the  seas,  at  Fort  St.  George,  in 
the  East  Indies  "  (the  real  place),  "  to  wit,  at  Westminster,  in 
the  County  of  Middlesex  "  (the  venue  in  the  action).^  With 
respect  to  this  method,  indeed,  of  laying  the  true  place,  with 
the  addition  of  the  venue  in  the  action,  under  a  videlicet,  we 
may  take  occasion  to  observe,  that  it  is  usually  applied,  not 
only  to  local  facts  arising  out  of  the  realm,  but  to  those  aris- 
ing in  England  also,  if  they  happened  at  a  different  venue 
from  that  in  the  action. 

Descriptive  Allegations  of  Place.  ^ 

Where  place  is  alleged  as  matter  of  description,  and  not  as 
venue,  it  must,  in  all  cases,  be  stated  truly  and  according  to 
the  fact,  under  peril  of  variance,  if  the  matter  should  be 
brought  into  issue.^ 

Defects  in  laying  Yenue. 

If  no  venue  be  laid  in  the  declaration,  the  defendant  may 
delhur  or  plead  the  defect  in  abatement.     Even  in  local  and 

1  See  a  curious  instance  of  the  difR-  Carth.    265 ;   Nichols  v.  Pawlett,  ibid. 

culty  formerl}'  found  in  such  cases,  cited  302 ;  Holding  v.  Haling,  3  Keb.  150. 

per  Abbott,  C.  J.,  The  King  v.  Burdett,  ^  Dowdale's  Case,  ubi supra;  Calvin's 

4  Barn.  &  Aid.  172;   and  another  in-  Case,  7  Co.  Rep.  27  a. 

stance,  cited  in  Dowdale's  Case,  6  Co.  ^  Com.  Dig.  Action,  n.  7. 

Rep.  47  b;  and  see  Broddecku.  Briggs,  *  Steph.  PI.  (5th  ed.)  292. 


334  COMMON-LAW  PLEADING. 

penal  actions  the  only  modes  of  objecting  to  the  venue  are  by 
demurrer,  or  at  the  trial  as  a  ground  of  nonsuit.^ 

Rule  II.     The  Pleadings  must  have  Certainty  of  Time.^ 

In  personal  actions,  the  pleadings  must  allege  the  time ; 
that  is,  the  day,  month,  and  year  when  each  traversable  fact 
occurred ;  and,  when  there  is  occasion  to  mention  a  continuous 
act,  the  period  of  its  duration  ought  to  be  shown.^ 

The  necessity  of  laying  a  time,  like  that  of  laying  a  venue, 
extends  to  traversable  facts  only,  and  therefore  no  time  need 
be  alleged  to  matter  of  inducement  or  aggravation.  The  courts, 
indeed,  are  in  the  habit  of  considering  the  allegations  of  place 
and  time  as  connected  together  ;  and  have  laid  down  this 
general  principle,  that  wherever  it  is  necessary  to  lay  a  venue, 
it  is  also  necessary  to  mention  time.* 

As  the  place,  in  transitory  matters,  is  considered  as  form- 
ing no  material  part  of  the  issue,  so  that  one  place  may  be 
alleged  and  another  proved,  the  same  law  has  obtained  with 
respect  to  time,  in  all  matters  generally.^  The  pleader,  there- 
fore, as  a  rule,  assigns  any  time  that  he  pleases  to  a  given 
fact.     This  option,  however,  is  subject  to  certain  restrictions  : 

(1)  He  should  lay  the  time  under  a  videlicet,  if  he  does  not 
wish  to  be  held  to  prove  it  strictly. 

(2)  He  should  not  lay  a  time  that  is  intrinsically  impossible, 
or  hiconsistent  with  the  fact  to  which  it  relates. 

A  time  so  laid  would,  generally,  be  sufficient  ground  for  de- 
murrer. But,  on  the  other  hand,  there  is  no  ground  for  demur- 
rer, where  such  time  is  laid  to  a  fact  not  traversable,  or  where, 
for  any  other  reason,  the  allegation  of  time  was  unnecessarily 
made  ;  for  an  unnecessary  statement  of  time,  though  impossible 
or  inconsistent,  will  do  no  harm,  upon  the  principle  that  utile, 
per  inutile,  non  vitiatur  (the  useful  is  not  hurt  by  the  useless).^ 

1  Chit.  PI.  253,  254.  of  Chester,  2  Salk.  561  ;  Cooke  v.  Birt, 

2  Cora.  Dig.  Pleader,  C  19  ;  Halsey    5  Taunt.  765. 

V.  Carpenter,  Cro.  Jac.  359;  Denison  v.         ^  This  appears  to  be  a  correct  general 

Richardson,  14  East,  291.  statement  of  the  law  with  respect  to  de- 

^  Ibid.  murrer  for  an  impossible  or  inconsistent 

*  Per  Buller,  J.,  The  King  u.  Holland,  date;  but  the  current  of  authorities  is 

5  T.  R.  620.  not   quite   clear   and   uniform   on   this 

6  Co.  Litt.  283  a;  The  King  u.  Bishop  subject.      (See  Com.  Dig.  Pleader,  C. 


RULES   TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  335 


When  Averments  of  Time  are  Material. 

Again,  there  are  some  instances  in  which  time  happens  to 
form  a  material  point  in  the'merits  of  the  case  ;  and,  in  these 
instances,  if  a  traverse  be  taken,  the  time  laid  is  of  the  sub- 
stance of  the  issue,  and  must  be  strictly  proved ;  just  as  in 
local  matters  it  is  necessary  to  prove  the  alleged  venue.  The 
pleader,  therefore,  with  respect  to  all  facts  of  this  description, 
must  state  the  time  truly,  at  the  peril  of  failure,  as  for  a  vari- 
ance. And  here,  as  in  the  case  of  a  local  fact,  the  insertion 
of  a  videlicet  will  give  no  help. 

Examples :  (1)  Where  the  declaration  stated  a  usurious  con- 
tract, made  on  the  21st  day  of  December,  1774,  for  giving  day  of 
payment  of  a  certain  sum  to  the  23d  day  of  December,  1776,  and 
the  proof  was  that  the  contract  was  on  the  23d  December,  1774, 
giving  day  of  payment  for  two  years,  it  was  held  that  the  verdict 
must  be  for  the  defendant ;  the  principle  of  this  decision  being, 
that  the  time  given  for  payment  being  of  the  substance  of  a 
usurious  contract,  such  time  must  be  proved  as  laid.^ 

(2)  Where  the  declaration  stated  a  usurious  agreement  on 
the  14th  of  the  month,  to  forbear  and  give  day  of  payment  for  a 
certain  period,  but  it  was  proved  that  the  money  was  not  advanced 
till  the  16th,  the  plaintiff  was  nonsuited  ;  ^  it  being  held  by  Lord 
Mansfield  at  the  trial,  and  afterwards  by  the  court  in  banc,  that 
the  day  from  whence  the  forbearance  took  place  was  material, 
though  laid  under  a  videlicet.^ 

When  not  Material. 

Where  the  time  needs  not  to  be  truly  stated  (as  is  generally 
the  case),  it  is  subject  to  a  rule  of  the  same  nature  with  one 

19;  2  Saund.  291  c,  n.  1  ;  ibid.  171  a,  he  usually  takes  the  course  of  avoiding 
n.  1.)  N.  B.  The  objection  is  often  a  verdict,  by  voluntarily  submitting  to 
aided,  after  verdict,  or  cured  by  the  judgment  of  nonsuit ;  aud  for  that  pur- 
statutes  of  jeofails.  pose  he  is  supposed  to  absent  himself 

1  Carlisle  v.  Trears,  Cowp.  671.  from  the  court.      The  reason   is,  that 

2  The  nature  of  judgment  of  nonsuit  such  judgment  does  not  prevent  liis 
has  been  stated.  It  will  be  proper  to  bringing  another  action,  but  by  a  verdict 
explain  here,  however,  that  when,  on  he  is  barred  forever.  (See  Bl.  Com. 
account  of   a  variance,   or  any  other  III.  377  *.) 

matter  of  form,  the  plaintiff  under-  »  Johnson  v.  Picket,  cited  Grimwood 
stands  that  the  judge  is  going  to  direct  v.  Barritt,  6  T.  R.  483 ;  see  also  Hardy 
the  jury  to  find  a  verdict  against  him,    v.  Cathcart,  5  Taunt.  2. 


336  COMMON-LAW  PLEADING. 

that  applies  to  venue  in  transitory  matters,  viz.,  that  the  plea 
and  subsequent  pleadings  should  follow  the  day  alleged  in  the 
writ  and  declaration,^  and  if,  in  these  cases,  no  time  at  all  be 
laid,  the  omission  is  aided,  after  verdict,  or  judgment  by  con- 
fession or  default,  by  the  operation  of  the  statute  of  jeofails.^ 
But  where,  in  the  plea  or  subsequent  pleadings,  the  time 
happens  to  be  material,  it  must  be  alleged ;  and  there  (as  in 
the  case  of  a  venue  to  a  local  fact)  the  pleader  may  be  obliged 
to  depart  from  the  day  in  the  writ  and  declaration. 

Exception  to  Rule. 
Certainty  of  time  is  said  to  be  required  in  personal  actions 
only ;  it  being  held  that  in  real  and  mixed  actions  it  is  gen- 
erally not  necessary  to  allege  the  day,  month,  and  year,  and 
that  it  is  sufficient  to  show  in  what  king's  reign  the  matter 
arose.^ 

Rule  III.    The  Pleadings  must  specify  Quality,   Quan- 
tity, AND  Value.* 

Averments  of  Quality,  Quantity,  and  Value. 
It  is,  generally,  necessary,  where  the  declaration  alleges 
any  injury  to  goods  and  chattels,  or  any  contract  relating  to 
them,  that  their  quality/,  quantify/,  and  value  or  price,  should 
be  stated.  In  any  action  brought  for  the  recovery  of  real 
property,  its  quality  should  be  shown,  as,  whether  it  consists 
of  houses,  lands,  or  other  hereditaments,  and,  as  a  rule,  it 
should  be  stated  whether  the  lands  are  meadow,  pasture,  or 
arable,  etc.  And  the  quantity  of  the  lands  or  other  real  estate 
must  *lso  be  specified.  So,  in  an  action  brought  for  injuries 
to  real  property,  the  quality  should  be  shown,  as,  whether  it 
consists  of  houses,  lands,  or  other  hereditaments. 

I        1  2  Saund.  5,  n.  3  ;  Ha  we  v.  Planner,  designate  the  thing  that   he  seeks,  to 

I  1  Saund.  14.  wit:  its  quality,  «&c.,  and  also  the  quan- 

2  Higgins  V.  Highfield,  13  East,  407.  tity,  &c.).   Bract.  431  a;  Harpur's  Case, 

3  Com.  Dig.  Pleader,  C.  iO;  The  11  Co.  Eep.  25  b;  Doct.  PI.  85,  86; 
King  V.  Bishop  of  Chester,  2  Salk.  561 ;  Knight  v.  Svmms,  Carth.  204;  Doe  i-. 
Skin.  660;  9  Henry  VI.  115,  116.  Ploughman,'  1  East,  441  ;    Goodtitle  v. 

*  Oportet  quod  petens  rem  designet,  Otway,  8  East,  357  ;  Andrew  v.  White- 
quam  petit,  videlicet,  qualitatem,  &c.,  head,  13  East,  102;  1  Saund.  333,  n.  7 ; 
item  quantitatem,  &c.  (the  plaintiff  must    2  Saund.  74,  n.  1. 


RULES  TO   PEODUCE  CERTAINTY  IN   THE  ISSUE.  337 

Examples :  (1)  In  an  action  of  trespass,  for  breaking  the  plain- 
tiff's close  and  taking  away  his  fish,  without  showing  the  number 
or  nature  of  the  fish,  it  was,  after  verdict,  objected,  in  arrest  of 
judgment,  first,  "  that  it  did  not  appear  by  the  declaration  of  what 
nature  the  fish  were :  pikes,  tenches,  breams,  etc. ; "  and,  secondly, 
that  "the  certain  number  of  them  did  not  appear."  And  the 
objection  was  allowed  by  the  whole  court.'' 

(2)  Where,  in  an  action  of  trespass,  the  declaration  charged 
the  taking  of  cattle,  the  declaration  was  held  to  be  bad,  because 
it  did  not  show  of  what  species  the  cattle  were.^ 

(3)  In  an  action  of  trespass,  where  the  plaintiff  declared  for 
taking  goods  generally,  without  specifying  the  particulars,  a  ver- 
dict being  found  for  the  plaintiff,  the  court  arrested  the  judgment 
for  the  uncertainty  of  the  declaration.^ 

(4)  In  a  modern  case,  where,  in  an  action  of  replevin,  the 
plaintiff  declared  that  the  defendant,  "  in  a  certain  dwelling-house, 
took  divers  goods  and  chattels  of  the  plaintiff,"  without  stating 
what  the  goods  were,  the  court  arrested  the  judgment  for  the  un- 
certainty of  the  declaration,  after  judgment  by  default  and  a  writ 
of  inquiry  executed.* 

(5)  In  an  action  of  dower,  where  blanks  were  left  in  the  count 
for  the  number  of  acres  claimed,  the  judgment  was  reversed  after 
verdict.^ 

(6)  In  ejectment,  the  plaintiff  declared  for  five  closes  of  land, 
arable  and  pasture,  called  Long  Furlongs,  containing  ten  acres  ; 
upon  not  guilty  pleaded  the  plaintiff  had  a  verdict,  and  it  was 
moved  in  arrest  of  judgment,  that  the  declaration  was  ill,  be- 
cause the  quantity  and  quality  of  the  lands  were  not  distin- 
guished and  ascertained,  so  as  to  show  how  many  acres  of  arable 
there  were  and  how  many  of  pasture.  And  for  this  reason  the 
declaration  was  held  ill,  and  the  judgment  arrested.® 

With  respect  to  value,  it  is  to  be  observed,  that  it  should  be 
specified  with  reference  to  the  current  coin  of  the  realm,  thus  : 
"  divers,  to  wit,  three  tables  of  great  value,  to  wit,  the  value 

1  Playter's  Case,  5  Co.  Rep.  34  b.  74,  n.   1.)      And    see   ChamberLain   v. 

N.  B.  —  Sergeant  Williams  observes,  Greenfield,  3  Wils.  292. 
that  in   this  case  the  omission  would,         2  j^^le  v.  Pliillipson,  2  Lutw.  1374. 
perhaps,  now  be  held  to  be  aided,  after         3  Bertie  v.  Pickering,  4  Burr.  24.55  ; 

verdict,   or  cured,  by   the   statutes  of  Wiat  v.  Essington,  2  Ld.  Rayra.  1410, 

jeofails ;    and  as   the  action   was    not  S.  P. 

merely  for  taking    fish,   but  also  for         *  Pope  v.  Tillman,  7  Taunt.  642. 
breaking  the   close,   he  doubts   if  the         ^  Lawley  v.  Gattacre,  Cro.  Jac.  498. 
declaration  would    now  be   held  bad,         ^  Knight  v.  Symms,  Garth.  204. 
even  on  special  demurrer.     (2  Saund. 

22 


338  COMMON-LAW  PLEADING. 

of  twenty  pounds,  of  lawful  money  of  Great  Britain."  With 
respect  to  quantity,  it  should  be  specified  by  the  ordinary 
measures  of  extent,  weight,  or  capacity,  thus :  "  divers,  to 
wit,  fifty  acres  of  arable  land,"  "  divers,  to  wit,  three  bushels 
of  wheat." 

Exceptions  to  Rule. 

The  rule  in  question,  however,  is  not  so  strictly  construed, 
but  that  it  sometimes  admits  the  specification  of  quality  and 
quantity  in  a  loose  and  general  way. 

Examples  :  (1)  A  declaration  in  trover,  for  t^o packs  of  flax  and 
two  packs  of  hemp,  without  setting  out  the  weight  or  quantity  of 
a  pack,  is  good  after  verdict,  and,  as  it  seems,  even  upon  special 
demurrer.^ 

(2)  A  declaration  in  trover,  for  a  library  of  books,  has  been 
-allowed,  without  expressing  what  they  were. 

(3)  Where  the  plaintiff  declared  in  trespass  for  entering  his 
house,  and  taking  several  keys  for  the  opening  of  the  doors  of 
his  said  house,  it  was  objected,  after  verdict,  that  the  kind  and 
number  ought  to  be  ascertained.  But  it  was  answered  and  re- 
solved, that  the  keys  are  sufficiently  ascertained  by  reference  to 
the  house. ^    > 

(4)  It  was  held,  upon  special  demurrer,  that  it  was  suffi- 
cient to  declare,  in  trespass  for  breaking  and  entering  a  house, 
damaging  the  goods  and  chattels,  and  wrenching  and  forcing  open 
the  doors,  without  specifying  the  goods  and  chattels,  or  the 
number  of  doors  forced  open ;  because  the  essential  matter  of  the 
action  was  the  breaking  and  entering  of  the  house,  and  the  rest 
merely  aggravation,^ 

There  are  also  some  kinds  of  actions,  to  which  the  rule 
requiring  specification  of  quality,  quantity,  and  value,  does 
not  apply  in  modern  practice.  Thus,  in  actions  of  debt  and 
indebitatus  assumjjsit  (where  a  more  general  form  of  declara- 
tion obtains  than  in  most  other  actions),  if  the  debt  is  claimed 
in  respect  of  goods  sold,  etc.,  the  quality,  quantity,  or  value  of 
the  goods  sold  is  never  specified.  The  amount  of  the  debt,  or 
sum  of  money  due  upon  such  sale,  must,  however,  be  shown. 

1  2  Saund.  74  b,  n.  L  3  Chamberlain  i;.  Greenfield,  3  Wila 

2  Layton  v.  Grindall,  2  Salk.  643 ;    292. 
and  see  many  other  instances,  2  Saund. 

74  b,  n.  1. 


eules  to  produce  certainty  in  the  issue,         339 

Averments  op  Quantity  and  Value  generally  Immaterial. 

As  with  respect  to  place  and  time,  so,  with  respect  to  quan- 
tity and  value,  it  is  not  necessary,  when  these  matters  are 
brought  into  issue,  that  the  proof  should  correspond  with  the 
averment.  The  pleader  may,  generally,  allege  any  quantity 
and  value  that  he  pleases  (at  least  if  it  be  laid  under  a  vzc?g- 
Zicg^),  without  risk  from  the  variance,  in  the  event  of  a  different 
amount  being  proved.^  But  it  is  to  be  observed,  that  a  verdict 
can  not  generally  he  obtained  for  a  larger  quantity  or  value 
than  is  alleged.  The  pleader,  therefore,  takes  care  to  lay  them 
to  an  extent  large  enough  to  cover  the  utmost  case  that  can 
be  proved. 

It  is  also  to  be  observed,  that,  as  with  respect  to  place  or 
time,  so  with  respect  to  quantity  or  value,  there  may  be  in- 
stances in  which  they  form  part  of  the  substance  of  the  issue  ; 
and  there  they  must  be  strictly  proved  as  laid. 

Exani2ole  :  To  a  declaration  in  assumpsit  for  £10  4s.,  and  other 
sums,  the  defendant  pleaded,  as  to  all  but  £4  7s.  6d.,  the  general 
issue ;  and,  as  to  the  £4  7s.  6d.,  a  tender.  The  plaintiff  replied 
that,  after  the  cause  of  action  accrued,  and  before  the  tender,  the 
plaintiff  demanded  the  said  sum  of  £4  7s.  6d.,  which  the  defendant 
refused  to  pay;  and  on  issue  joined,  it  was  proved  that  the  plaintiff 
had  demanded  not  £4  7s.  6d.,  but  the  whole  £10  4s,  This  proof 
was  held  not  to  support  the  issue.^ 

Averments  of  Quality  Material. 

With  respect  to  the  allegation  of  quality,  this  generally 
requires  to  he  strictly  proved  as  laid. 

Rule  IV.     The  Pleadings  must  specify  the  Names  of   j 

Persons.3 

(1)   This  rule  apptlies  to  the  parties  to  the  suit. 
The  original  writ  and  the  declaration  must  both  set  forth 
ncmirntply  ihp.  names  nf  botli  pnrties^     The  plaintiff  must  be 

1  Crispin  v.  Williamson,  8  Taunt.  19,  F.  17,  F.  18;  /inZ,  Pleader,  C.  18; 
107.  Bract.  301  b. 

2  Rivers  v.  Griffith,  5  Barrt.  &  Aid.  *  Com.  Dig.  ubi  supra ;  Bract,  ubi 
630.  supra.     But  in   Queen  v.   Dale,  17  Q. 

8  Com.  Dig.  Abatement,  E.  18,  E.    B.  64  (proceedings  in  scire  facias  on 


/ 


340  COMMON-LAW  PLEADING. 

described  by  his  Christian  name  and  surname  :  and,  if  either 
bf,  ipistaken  or  j)mitted,  it  is  ^ronT]fl  for  pTpn.  jq  n.hn.tpmpnt. 
The  case  is  the  same  with  respect  to  the  defendant.  If  either 
party  have  a  name  of  dignity,  such  as  earl,  etc.,  he  must  be 
described  accordingly ;  and  an  omission  or  mistake  in  such 
description  has  the  same  effect  as  in  the  Christian  name  and 
surname  of  an  ordinary  person.^ 

4      (2)   The  rule  also  relates  to  persons  not  parties  to  the  suit, 

wf  whom  meyition  is  made  in  the  pleading. 

The  names  of  such  persons,  viz.,  the  Christian  name  and 
surnaroe,  or  name  of  dignity,  must  generally  be  given  ;  but,  if 
not  within  the  knowledge  of  the  party  pleading,  an  allegation 
to  that  effect  should  be  made,  and  such  allegation  will  excuse 
the  omission  of  name.^ 

Consequences  of  a  Mistake. 

A  mistake  in  the  name  of  a  party  to  the  suit  is  ground_for 
plea  in  abatement  only,  and  can  not  be  objected  as  a  variance 
at  the  trial ;  but  the  name  of  a  person  not  a  partj,  is  a  point 
on  which  the  proof  must  correspond  with  the  averment,  under 
peril  of  a_ fatal  variance,  for  it  is  matter  of  description. 

Examples:  (1)  Where  a  bill  of  exchange  drawn  by  John 
Couch  was  declared  upon  as  drawn  by  John  Crouch,  and  the 
defendant  pleaded  the  general  issue,  the  plaintiff  was  nonsuited.^ 

(2)  Where  the  declaration  stated  that  the  defendant  went  be- 
fore Richard  Cavendish,  Baron  Waterpark,  of  Waterfork,  one  of 
the  justices,  etc.,  for  the  County  of  Stafford,  and  falsely  charged 
the  plaintiff  with  felony,  etc.,  and,  upon  the  general  issue,  it 
appeared  in  evidence  that  the  charge  was  made  before  Richard 
Cavendish,  Baron  Waterpark,  of  Waterpark  —  this  was  held  a 
fatal  variance  in  the  name  of  dignity.* 

a  recognizance),  the  declaration  stated         ^  Com    Dig.  Abatement,  E.  20,  F. 

that    the   recognizance    had   been    ac-  19. 

knowledged    before    "J.   H.  Harper."         -  Bucldey  v.  Rice  Thomas,  Plowd, 

A  demurrer  was  overruled,  the  court  128  a;  Rowe  v.  Roach,  1  M.  &  S.  304. 
saying  that  "  J "  may   have  been  the         ^  Whitwell  i'.  Bennett,  3  Bos.  &  Pull, 

full  Christian  name  of  the  person,  and  559.    See  also  Bowditch  v.  Mawley,  I 

adding,    "There  is    no    doubt    that   a  Camp.    195;    Hutchinson   v.   Piper,   4 

vowel  may  be  a  good  Christian  name,  Taunt.  810. 

why  not  a  consonant  ?  "  *  Walters  v.  Mace,  2  Barn.  &  Aid. 

756. 


\x 


rules  to  produce  certainty  in  the  issue.         341 

Rule  Y.    The  Pleadings  must  show  Title.i  1  ' 

When,  in  pleading,  any  ri^ht  or  authority  is  set  up  in  re-  / 
spect  of  property,  personal  or  real,  some  title  to  that  property/ 
must  of  course  be  alleged  in  the  party,  orjn  some  other  per- 
son  from  whom  he  derives  his  authority. 

So,  if^  party  be  charged  with  any  liahilitii^  in  respect  of 
properjty,  personal  or  real,  his  title  to  that  property  must  be 
alleged. 

It  is  proposed  to  consider  :  — 

I.  The  case  of  a  party's  alleging  title  in  himself,  or  in 
another  whose  authority  he  pleads  ; 

II.  That  of  his  alleging  it  in  his  adversary. 

I.  Of  the  Case  where  a  Party  alleges  a  Title  in  Him- 
self, OR  IN  Another  whose  Authority  he  pleads. 

(A)  It  is  often  sufficient  to  allege  a  Title  of  Posses- 
sion only. 

The  form  of  laying  a  title  of  possession,  in  respect  of  goods 
and  chattels,  is  either  to  allege  that  they  were  the  ^'■£oods_cmd 
dLOJtelsjyf  the  plami^"  or  that  he  was  "  lawfully  possessed  of 
them  as  of  his  own  property.''^ 

With  respect  to  corporeal  hereditaments,  the  form  is,  either 
to  allege  that  the  close,  etc.,  was  the  "  close  of  "  the  plaintifP, 
or  that  he  was  "  lawfully  possessed  of  a  certain  close J^  etc. 

With  respect  to  incorporeal  hereditaments,  a  title  of  posses- 
sion is  generally  laid  by  alleging  that  the  plaintiff  was  pos- 
sessed of  the  corporeal  thing,  in  respect  of  which  the  right  is 
claimed,  and  by  reason  thereof  was  entitled  to  the  right  at  the 
time  in  question ;  for  example,  that  he  "  was  possessed  of  a 
certain  messuage,  etc.,  and  hy  reason  thereof,  during  all  the  time 
aforesaid,  of  right  ought  to  have  had  common  of  pasture, ^^  etc. 

A  title  of  possession  is  applicable,  that  is,  will  be  sufficiently 
sustained  by  the  proof,  in  all  cases  where  the  interest  is  of  a 
present  and  immediate  kind.  Thus,  when  a  title  of  possession 
is  alleged  with  respect  to  goods  and  chattels,  the  statement 
will  be  supported  by  proof  of  any  kind  of  present  interest  in 

1  Com.  Dig.  Pleader,  3  M.  9 ;  Bract.  372  b,  373  b. 


342  COMMON-LAW  PLEADING. 

them,  whether  that  interest  be  temporary  and  special,  or  abso- 
lute in  its  nature ;  as,  for  example,  whether  it  be  that  of  a 
carrier  or  finder  only,  or  that  of  an  owner  and  proprietor.^ 
So,  where  a  title  in  possession  is  alleged  in  respect  of  corporeal 
or  incorporeal  hereditaments,  it  will  be  sufficiently  maintained 
by  proving  any  kind  of  estate  in  p)ossession,  whether  fee  simple, 
fee  tail,  for  life,  for  term  of  years,  or  otherwise.  On  the  other 
hand,  with  respect  to  any  kind  of  property,  a  title  of  posses- 
sion would  not  be  sustained  in  evidence  by  proof  of  an  interest 
in  remainder  or  reversion  only  ;  and,  therefore,  when  the  inter- 
est is  of  that  description,  the  preceding  forms  are  inapplicable, 
and  title  must  be  laid  in  remainder  or  reversion,  according  to 
the  fact,  and  upon  the  principles  that  will  be  afterwards 
stated  on  the  subject  of  alleging  title  in  its  full  and  precise 
extent. 

Where  a  title  of  possession  is  aj^plicahle,  the  allegation  of  it 
is,  in  many  cases,  sufficient,  in  pleading,  without  showing  title 
of  a  superior  kind.     The  rule  on  this  subject  is  as  follows : 

;  It  is  sufficient  to  allege  possession  as  against  a  wrong-doer? 

In  other  words,  it  is  enough  to  lay  a  title  of  possession 
against  a  person  who  is  stated  to  have  committed  an  injury 
'to  such  possession,  having,  as  far  as   it  appears,  no   title 
himself. 

Examples  :  (1)  If  the  plaintiflf  declares  in  trespass,  for  breaking 
and  entering  his  close,  or  in  trespass  on  the  case,  for  obstructing 
his  right  of  way,  it  is  enough  to  allege  in  the  declaration,  in  the 
first  case,  that  it  is  the  ^^  close  of  the  plaintiffi,^^  in  the  second 
case,  that  "  Ae  was  possessed  of  a  certahi  messuage,  etc.,  and,  by 
reason  of  such  possession,  of  right  ought  to  have  had  a  certain  way^'' 
etc.  For,  if  the  case  was  that  the  plaintiff  being  possessed  of 
the  close,  the  defendant,  having  himself  no  title,  broke  and  entered 
it,  or,  that  the  plaintiff  being  possessed  of  a  messuage  and  right 
of  way,  the  defendant,  being  without  title,  obstructed  it,  then, 
whatever  was  the  nature  and  extent  of  the  plaintiff's  title,  in 
either  case,  the  law  will  give  him  damages  for  the  injury  to  his 

1  2  Saund.  47  a,  n.  1.  how  v.  Esley,  "Willes,  619;   Waring  v. 

2  Com.  Dig.  Pleader,  C.  39,  C.  41  ;  Griffiths,  1  Burr.  440 ;  Langford  v. 
Taylor  v.  Eastwood,  1  East,  212 ;  Grim-    Webber,  3  Mod.  132. 

stead  V.  Marlowe,  4  T.  R.  717;  Green- 


RULES   TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  343 

possession;  and  it  is  the  possession,  therefore,  only  that  needs  to 
be  stated.  It  is  true  that  it  does  not  yet  appear  tliat  the  defend- 
ant had  no  title,  and,  by  his  plea,  he  may  possibly  set  up  one 
superior  to  that  of  the  plaintiff ;  but  as,  on  the  other  hand,  it 
does  not  yet  appear  that  he  had  title,  the  effect  is  the  same, 
and  till  he  pleads  he  must  be  considered  as  a  mere  tvrong-doer, 
that  is,  he  must  be  taken  to  have  committed  an  injury  to  the 
plaintiff's  possession,  without  having  any  right  himself. 

(2)  In  an  action  of  trespass  for  assault  and  battery,  if  the 
defendant  justifies,  on  the  ground  that  the  plaintiff  wrongfully 
entered  his  house  and  was  making  a  disturbance  there,  and  that 
the  defendant  gently  removed  him,  the  form  of  the  plea  is,  that 
"  the  defendant  was  laivfully  2->ossessed  of  a  certain  dwelling- 
house,  etc.,  and,  being  so  possessed,  the  said  plaintiff  was  unlaw- 
fully in  the  said  divelling-house,'^  etc. ;  and  it  is  not  necessary 
for  the  defendant  to  show  any  title  to  the  house  beyond  this  of 
mere  possession.^  For  the  j^l^^^ntiff  has,  at  present,  set  up  no 
title  at  all  to  the  house ;  and,  on  the  face  of  the  plea,  he  has  com- 
mitted an  injury  to  the  defendant's  possession,  without  having 
any  right  himself. 

(3)  In  an  action  of  trespass  for  seizing  cattle,  if  the  defendant 
justifies,  on  the  ground  that  the  cattle  were  damage- feasant  on 
his  close,  it  is  not  necessary  for  him  to  show  any  title  to  his 
close,  except  that  of  mere  possession.*^ 

Exceptions :  It  is  to  be  observed,  however,  with  respect  to 
this  rule,  as  to  alleging  possession  against  a  wrong-doer,  that 
it  seems  not  to  hold  in  replevin.  For,  in  that  action,  it  is 
held  not  to  be  sufficient  to  state  a  title  of  possession,  even 
in  a  case  where  it  would  be  allowable  in  trespass,  by  virtue 
of  the  rule  above  mentioned. 

Example :  In  replevin,  if  the  defendant,  by  way  of  avowry, 
pleads  that  he  was  possessed  of  a  messuage,  and  entitled  to 
common  of  pasture,  as  appurtenant  thereto,  and  that  he  took  the 
cattle  damage- feasant,  it  seems  that  this  pleading  is  bad,  and  that 

1  Skevill  V.  Avery,  Cro.  Car.  138.  N.  B.  —  It  is  sometimes  said,  that  the 

2  1  Saund.  221,  n.  1,  346  e,  n.  2 ;  2  reason  why  it  is  suflScieut  to  lay  a 
Rannd.  28.5,  n.  3 ;  Anon.  2  Salk.  643 ;  possessory  title  in  sucli  cases  is,  that 
Searl  v.  Bunnion,  2  Mod.  70  ;  Osway  v.  the  title  is  matter  of  Inducement  only 
Bristow,  10  Mod.  37;  2  Bos.  &  Pull,  to  the  main  subject  of  the  plea.  But 
361,  n.  a;  Langford  v.  Webber,  3  Mod.  this  doctrine,  if  well  examined,  resolves 
132;  but  see  s.  c.  Carth.  9;  3  Salk.  itself  into  the  l)roader  and  more  satis- 
356.  factory  rule  given  in  the  text. 


344  COMMON-LAW  PLEADING. 

it  is  not  sufficient  to  lay  such  mere  title  of  possession  in  this 
action.^ 

It  is  to  be  observed,  too,  that  this  rule  has  little  or  no  appli- 
cation in  real  or  mixed  actions ;  for,  in  these,  an  injury  to  the 
possession  is  seldom  alleged ;  the  question  in  dispute  being, 
for  the  most  part,  on  the  right  of  possession,  or  the  right  of 
projyertg. 


V 


(B)   Where  Superior  Title  must  be  shown. 

Where  this  rule  as  to  alleging  possession  against  a  wrong- 
doer tZogs  *^^i_^i^5  there,  though  the  interest  be  present  or 
possessory,  it_i^ generally^  not  sufficient  to  state  a  title  of 
possession^  but  some  superior  title  must  be  shown. 

Examples  :  (1)  In  trespass  for  breaking  the  plaintiff's  close,  if 
the  defendant's  justification  is  that  the  close  was  his  own  copyhold 
estate  of  inheritance,  Ms  plea,  as  it  does  not  make  the  plaintiff  a 
wrong-doer,  but,  on  the  contrary,  admits  his  possessory  title  in  the 
close,  and  pleads  in  confession  and  avoidance  of  it,  must  allege 
not  merely  a  possession,  but  a  seisin  in  fee  of  the  copyhold. 

(2)  In  a  similar  action,  if  the  defendant  relies  on  a  right  of 
way  over  the  plaintiff's  close,  it  will  not  be  sufficient  to  plead 
that  he,  the  defendant,  was  lawfully  2^ossessed  of  another  close, 
and,  by  reason  of  such  possession,  was  entitled  to  a  right  of  way 
over  the  plaintiff's,  but  he  must  set  forth  some  superior  title  to 
his  close  and  right  of  way ;  as,  for  example,  that  of  seisin  in  fee 
of  the  close,  and  a  prescription  in  a  que  estate  ^  to  the  right  of 
way. 

The  manner  of  stating  a  superior  title  to  that  of  possession 
will  be  shown  under  the  following  head,  relative  to  the  alle- 
gation of  title  in  its  fiill  and  precise  extent. 

1  Hawkins  v.  Eckles,  2  Bos.  &  Pull,  of  common,  it  is  required  to  allege  a 
359,  361,  n.  a;  per  Buller,  J.  Dovaston  seisin  in  fee  of  the  close  or  other  cor- 
V.  Payne,  1  H.  Bl.  530 ;  1  Saund.  346  e,  jjoreal  hereditament  in  respect  of  which 
n.  2 ;  2  Saund.  295,  n.  3  ;  Saunders  v.  the  right  is  claimed,  and  then  to  prescribe 
Hussey,  2  Lutw.  1231;  s.  C.  Carth.  for  that  right,  in  a  que  estate;  i.e.,  to 
9 ;  1  Ld.  Raym.  333  ;  but  see  Adams  v.  allege  that  the  person  so  seised,  and  all 
Cross,!  Vent.  181.  those  w^ose  c.^to^e  he  has  in  the  premises, 

2  Where  a  prescriptive  right  is  have,  from  time  immemorial,  exercised 
claimed  to  an  easement,  or  to  any  profit  the  right  in  question.  Min.  Inst.  IV. 
or  benefit  taken  or  arising  out  of  land,  968  ;  Bl.  Com.  II.  264*;  1  Saand.  346, 
such  as  a  prescriptive  right  of  way  or  n.  3. 


EULES   TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  345 

(C)  Where  a  Title  op  Possession  is  either  not  Applica- 
ble, OR  NOT  Sufficient,  the  Title  should,  generally,  be 
stated  in  its  Full  and  Precise  Extent.^ 

Upon  this  head,  two  subjects  of  remark  present  themselves  : 
(a)  The  Allegation  op  the  Title  itself, 
(5)  The  Statement  of  its  Derivation. 

(a)  The  Allegation  of  the  Title  itself. 

With  respect  to  the  allegation  of  the  title  itself,  there  are  ""v" 
certain  forms  used  in  pleading,  appropriate  to  each  different 
kind  of  title,  according  to  all  the  different  distinctions  as  to 
tenure,  quantity/  of  estate,  time  of  enjoyment,  and  number  of 
owners.  These  forms  are  too  various  to  be  here  stated,  and  it 
will  be  sufficient  to  refer  the  student  to  the  copious  stores  in 
the  printed  precedents.^ 

(5)  The  Derivation  of  the  Title. 

With  respect  to  the  derivation  of  the  title,  there  are  certain 
rules  of  which  it  will  be  necessary  to  give  some  account. 

There  is  a  leading  distinction,  on  this  subject,  between 
estates  in  fee  simple  and  particular  estates. 

(1)  Generally,  it  is  sufficient  to  state  a  seisin  in  fee  simple 
per  se. 

In  this  case  jjLi5_fiI?j!2^^g;h  Rimply  ^^  g^ntp  (according  to  the 
usual  form  of  alleging  that  title),  thq^t_thg_  pn rf.y  -lygs,  "  seised 
in  hh  ilemciou'  as  of  fee  of  and  in  a  certain  messiuigel^  etc., 
without  sbuwino-  the  derivation.,  ql (as  it  is  expressed  mplead- 
ing),  the  commencement  of  the  estate.^  For,  if  it  were  requisite  \  v^ 
to  show  from  whom  the  present  tenant  derived  his  title,  it ,/ 
might  be  required,  on  the  same  principle,  to  show  from  whom  f 
that  person  derived  his,  and  so  ad  infinitum.   Besides,  as  mere 
seisin  will  be  sufficient  to  give  an  estate  in  fee  simple,  the 
estate  may,  for  anything  that  appears,  have  had  no  other  com- 

1  Therefore,  to  allege  mere  seisin,  Wentworth's  Pleading,  and  the  2d  and 
without  showing  whether  in  fee,  in  tail,  3d  volumes  of  any  edition  prior  to  1834 
or  for  life,  is,  generally,  not  sufficient,    of  Chitty's  Pleading. 

(Saunders  v.  Hussey,  Carth.  9 ;  s.  c.  2         ^  Qq   Ljtt.  303  b ;  Scavage  v.  Haw- 
Lutw.  1231  ;  1  Ld.  ilaym.  333.)  kins,  Cro,  Car.  571. 

2  The  best  books  of  precedents  are 


346  COMMON-LAW  PLEADING. 

mencement  than  the  seisin  itself  which  is  alleged.  So,  though 
the  fee  be  conditional  or  determinable  on  a  cev^r]]^  pvpnt.,  ypt, 
u  seisin  in  fee  may  be  alleged,  without  showing  the  commence- 
ment  of  the  estate^ 

(2)  However,  it  is  sometimes  necessary  to  show  the  deriva- 
ition  of  the  feje;   viz.,  where,  in  the  pleading,   the  seisin  has 

I  already  been  alleged  in  another  person,  from  whom  the  present 

I  party  claims. 

i      In  such  case  it  must,  of  course,  be  shown  how  it  passed 
from  one  of  these  persons  to  the  other. 

Examples  :  (1)  In  debt  or  covenant  brought  on  an  indenture 
of  lease  by  the  heir  of  the  lessor,  the  plaintiff,  having  alleged  that 
his  ancestor  was  seised  in  fee  and  made  the  lease,  must  proceed 
to  show  how  the  fee  passed  to  himself,  viz.,  by  descent. 

(2)  If,  in  trespass,  the  defendant  plead  that  E.  F.,  being 
seised  in  fee,  demised  to  G.  H.,  under  whose  command  the  de- 
fendant justifies  the  trespass  on  the  land  (giving  color),  and  the 
plaintiff,  in  his  replication,  admits  E.  F.'s  seisin,  but  sets  up  a 
subsequent  title  in  himself  to  the  same  land,  in  fee  simple,  prior 
to  the  alleged  demise,  he  must  show  the  derivation  of  the  fee 
from  E.  F.  to  himself,  by  conveyance  antecedent  to  the  lease 
under  which  G.  H.  claims.^ 

(3)  With  respect  to  'particular  estates,  the  general  rule  is, 
'that  the  commencement  of  particular  estates  must  he  shown.^ 

If,^therefore,  a  party  sets  up  in  his  own  favor  an  estate  tail. 
an^state_for_life,  a  term  of  years,  or  a  tenancy  at_will.  he 
must.  show_ihe..  derivation  of  that  title  from  its  commence- 
ffifiEt^  that  is,  from  the  last  seisin  in  fee  simple  ;  and,  if 
derived  by  alienation  or  conveyance,  the  substance  and 
effed;  of  such  conveyances  should  be  precisely  f^et  fort;h. 
For  examples  of  the  manner  of  thus  showing  the  com- 
mencement of  particular  estates,  under  all  the  different 
kinds  of  conveyances,  and  other  media  of  title,  the  student 
must  again  have  recourse  to  the  books  of  precedents. 

1  Doct.  PI.  287.  Bunnion,  2  Mod.  70;  Johns  v.  Whitley, 

2  See  Upper  Bench  Precedents,  196,  3  Wils.  72 ;  Hendy  r.  Stephenson,  10 
cited  9  Went.,  Index,  xl,  xli.  East,  60 ;  East.  Ent.  656  ;  and  the  case 

3  Co.  Litt.  303  b  ;  Scilly  v.  Dally,  2  of  title  derived  from  the  king  is  no 
Salk.  562;  s.   c.   Carth.  444;  Searl  v.  exception.     (1  Saund.  186  d,  n.  1.) 


RULES  TO  PRODUCE   CERTAINTY  IN  THE   ISSUE.  347 

Under  this  rule,  that  the  commencement  of  particular  estates 
must  he  shown,  it  is  necessary  to  show  the  commencement 
of  a  copyhold,  even  though  it  be  copyhold  of  inheritance} 
This  is  on  the  ground  that  a  copyhold,  even  in  fee,  is  in 
the  nature  of  a  particular  estate^,  in  respect  oftlie  freehold 
inheritance  in  the  lord.  And  the  difficulty  that  would  arise, 
if  the  title  were  to  be  deduced  from  the  earliest  or  original 
grantee,  is  obviated  by  the  practice  of  going  back  to  the 
admittance  of  the  last  heir  or  surrenderee  only ;  which 
admittance  is  considered  as  in  the  nature  of  a  grant  from 
the  lord,  and  is  so  pleaded.^  It  is  in  this  manner  that  the 
commencement  of  a  copyhold  estate  is,  generally,  alleged, 
namely,  by  stating  it  as  a  grant  from  the  lord.^  But,  where 
an  estate  has  been  already  laid  in  another  copyholder,  from 
whom  the  present  party  claims,  and  it  becomes  necessary, 
therefore,  to  show  how  the  estate  passed  from  one  to  the 
other,  the  conveyances  between  the  copyhold  tenants,  by 
surrender,  and  the  admittance  by  the  lord,  etc.,  must  then 
be  set  forth  according  to  the  fact. 

Exception :  To  the  rule  that  the  commencement  of  particu- 
lar estates  must  he  shown,  there  is  this  exception,  that  i_t  need, 
not  be  shown  where  the  title  is  alleged  by  way  of  inducement 

Example  :  If  an  action  of  debt  or  covenant  be  brought  on  an 
indenture  of  lease  by  the  executor  or  assignee  of  a  lessor,  who 
had  been  entitled  for  a  term  of  years,  it  is  necessary,  in  the  decla- 
ration, to  state  the  title  of  the  lessor,  in  order  to  show  that  the 
plaintiff  is  entitled  to  maintain  the  action,  as  his  representative 
or  assignee.  But  as  the  title  is,  in  that  case,  alleged  by  way  of 
inducement  only  (the  action  being  mainly  founded  on  the  lease 
itself),  and  therefore  it  is  probable  that  the  title  may  not  come 

^  Pyster  v.  Hemling,  Cro.  Jac.  103;  v.  Vernon,  5  East,  51  ;  Burrell  v.  Dodd, 

Shepheard's  Case,  Cro.  Car.  190;  Rob-  3  Bos.  &  Pull.  378. 
iuson  V.  Smith,  4  Mod.  346.  *  Com.  Di<?.  Pleader,  E.  19,  C.  43; 

2  See  same  cases,  and  Brown's  Case,  Blockley  v.  Slater,  Lutw.  120  ;  Searl  v. 
4  Co.  Rep.  22  b;  Bac.  Ab.  Pleas,  &c.  Bunnion,  2  Mod.  70;  Scilly  v.  Dally, 
422,  5th  ed.  Carth  444 ;  Skevill  v.  Avery,  Cro.  Car. 

3  As  to  cuxtomary  freeholds,  see  138 ;  Lodge  v.  Frye,  Cro.  Jac.  52 ; 
Croucher  v.  Oldfield,   Salk.   365;   Roe  Adams  v.  Cross,  2  Vent.  181  ;  Wade  v. 

Baker,  1  Ld.  Raym,  130. 


348  COMMON-LAW   PLEADING. 

into  question,  the  particular  estate  for  years  may  be  alleged  in 
the  lessor,  without  showing  its  commencement. 

(4)  TF^grg  a  party  claims  5y.  pV^^'>'^'^^^^^;^e  must^  generally^ 
show  how  he  is  heir,^  and  if  he  claims  hij  mediate,  not  imme- 
diate, descent,  he  must  show  the  pedigree. 

If  he  claims  by  inheritance,  he  must  show  how  he  is  heir, 
whether  as  son  or  otherwise ;  if  he  claims  as  nephew,  he 
must  show  how  he,is..nfiphpwj 

(5)  Where  a  party  claims  hy  conveyance  or  alienation,  the 
nature  of  the__eonveyance  or  alienation  must,  generally,  he 
stated. 

It  must  be  shown  whether  it  is  by  devise,  feoffment^  etc.^ 

(6)  The  7iature  of  the  conveyance  or  alienation  should  he 
stated  according  to  its  legal  effect,  rather  than  its  form  of 
words. 

This  depends  on  a  more  general  rule,  which  we  shall  have 
occasion  to  consider  in  another  place,  viz.,  "  that  things  are 
to  be  pleaded  according  to  their  legal  effect  or  operation."^ 
For  the  present,  the  doctrine,  as  applicable  to  conveyances, 
may  be  thus  illustrated.  In  pleading  a  conveyance  for  life, 
with  livery  of  seisin,  the  proper  form  is  to  allege  it  as  a 
"  demise "  for  life,*  for  such  is  its  effect  in  proper  legal 
description.  So,  a  conveyance  in  tail,  with  livery,  is  always 
pleaded,  on  the  same  principle,  as  a  "  gift "  in  tail,^  and  a 
conveyance  of  the  fee,  with  livery,  is  described  by  the  term 
"enfeoffed."^  And  such  would  be  the  form  of  pleading, 
whatever  might  be  the  words  of  donation  used  in  the  instru- 
ment itself ;  which,  in  all  the  three  cases,  are  often  the  same, 

1  Denham  v.  Stephenson,  1  Salk.  conveyance  in  fee ;  and  yet,  sometimes 
355 ;  The  Duke  of  Newcastle  v.  Wright,  improperly,  it  is  called  a  feoffment, 
1  Lev.  1 90 ;  1  Ld.  Raym.  202.  when  an  estate  of  freehold  only  doth 

2  Dumsday  v.  Hughes,  3  Bos.  &  passe."  (Co.  Litt.  9  a.)  Feoffare  di- 
PuU.  453  ;  Blackborough  v.  Davis,  12  citur,  qui  feodum  simplex  feoffatorio 
Mod.  619;  and  see  Roe  v.  Lord,  2  confert;  donare,  qui  feodum  talhatura. 
Bl.  Rep.  1099,  and  the  cases  there  (He  is  said  to  enfeoff,  who  confers  a  fee 
cited.        .  simple  on  a  feoffee  ;  to  donate,  who  confers 

3  See  Com.  Dig.  Pleader,  E.  23,  E.  a  fee  tail.)  (Spelm.  Gloss,  verbo/eo/- 
24.  fare.)     And    Lord    Coke,    in    another 

*  Rast.  Ent.  647  a,  11  d.  place,  makes  the  distinction  laid  down 

5  See  Co.  Ent.  tit.  Eormedon,  &c.,  &c.    in  the  text  between  feoffment,  gift,  and 

6  "Feoffment  properly  betokeneth  a    demise.  (Vynior's  Case,  8  Co.  Rep.  82  b.) 


RULES   TO    PRODUCE    CERTAINTY   IN   THE   ISSUE.  349 

viz.,  those  of  "  give  "  and  "  grant."  ^  So,  in  a  conveyance 
by  lease  and  release,  thougli  the  words  of  the  deed  of  release 
be_"  grant,  bargain,  sell,  alien,  release,  and  confirm,"  yet  it. 
should  be  pleaded  as  a  release  only,  for  that  is  the  legal 
_effect.2  So,  a  surrender  (whatever  words  are  used  in  the 
instrument)  should^be  pleaded  with  sursum  reddidit  (again  he 
rendered),  whicli_alone,  in  pleading,  describe  the  operation  of 
a_conveyance  as  a  surrender.*^ 

(7)  Where  the  nature  of  the  conveyance  is  such  that  it  ivould, 
at  common  law,  be  valid  without  deed  or  writing,  there  no 
deed  or  ivriting  need  he  alleged  in  the  pleading,  though  such 
document  may  in  fact  exist;  hut  ivhere  th^jnMure^qf  th^_con- 
veyance  requires,  at  common  law,  a  deed,  or  other  written 
instrument,  such  instrument  must  he  alleged.^ 

Therefore,  a  conveyance,  with  livery  of  seisin,  either  in  fee, 
tail,  or  for  life,  is  pleaded  without  alleging  any  charter,  or 
other  writing  of  feoffment,  gift,  or  demise,  whether  such 
instrument,  in  fact,  accompanied  the  conveyance  or  not.  For 
such  conveyance  might,  at  common  law,  be  made  by  parol 
only,^  and  though,  by  the  statute  of  frauds,  29  Car.  II.  c.  3,  s. 
1,  it  will  not  now  be  valid  unless  made  in  writing,  yet  the 
form  of  pleading  remains  the  same  as  before  the  act  of  Par- 
liament.^ On  the  other  hand,  a  devise  of  lands  (which,  at 
common  law,  was  not  valid,  and  authorized  only  by  the  stat- 
utes 32  Hen.  YIII.  c.  1,  and  34  Hen.  VIII.  c.  5),  must  be 
flilptrpfl  fn  linvf^  hppn  mndrritr^vvriting.'^  which  is  the  only  form 
in_which  the  stat'ifiP"'  ""^'"'ej4ge-4t  to  be  made.  So,  if  a  con- 
veyance by  way  of  grant  be  pleaded,  a  deed  must  be  alleged,^ 
for  matters  that  "  lie  in  grant "  (according  to  the  legal 
phrase)  can  pass  by  deed  only.^ 

1  "Z)o  (I  give)  or  rferfi  (I  have  given)  by  statute   do  not  alter  the  form   of 

is  the  aptest  word  of  feoffment."     (Co.  pleading  at   common  law.     This  rule 

Litt.  9  a.)  will  be  noticed  hereafter,  in  its  proper 

'^  1  Arch.  127 ;  3  Went.  483,  515.  place. 

»  1  Saund.  235  b,  n.  9.  M  Saund.  276  a,  n.  2. 

*  Vin.  Ab.  Faits  or  Deeds,  M.  a,  11.         ^  Porter  v.  Gray,  Cro.  Eliz.  245;  1 

6  Vin.  Ab.  Feoffment,  Y. ;  Co.  Litt.  Saund.  234,  n.  3 ;  Lathbury  v.  Arnold, 

121  b.  I  Bing.  217. 

"  This  depends  upon  a  more  general        ^  Vin.  Ab.  tit.  Grants,  G.  a. 
rule,  viz.,  that  regulations  introduced 


350  COMMON-LAW   PLEADING. 

Exception:  There  is  one  case,  however,  in  which  a  deed 
is  usually  alleged  in  pleading,  though  not  necessary,  at  com- 
mon law,  to  the  conveyance,  and  which,  therefore,  in  practice 
at  least,  forms  an  exception  to  the  above  rule.  For,  in  making 
title  under  a  lease  for  years,  by  indenture,  it  is  usual  to  plead 
the  indenture,  though  the  lease  was  good  at  common  law  bv 
parol,  and  needs  to  be  in  writing  only  where  the  term  is  of 
more  than  three  years'  duration,  and  then  only  by  the  statute 
of  frauds. 

On  the  other  hand,  in  the  case  where  a  demise  by  husband 
and  wife  is  pleaded,  it  seems  that  it  is  not  necessary  to  show 
that  it  was  by  deed ;  and  yet  the  lease,  if  without  deed,  is  at 
common  law  void  as  to  the  wife,  after  the  death  of  the  hus- 
band, and  is  not  within  the  statute  32  Hen.  VIII.  c.  28,  s.  1, 
which  gives  efficacy  to  leases  by  persons  having  an  estate  in 
right  of  their  wives,  etc.,  only  where  such  leases  are  "  by 
writing  indented,  under  seal."  The  reason  seems  to  be  that 
a  lease  by  husband  and  wife,  though  without  deed,  is_  good 
during  the  life  of  the  husband.^ 

Thus  far  with  respect  to  the  allegation  of  title,  in  li^full 
and  precise  extent.  Another  mode,  however,  of  laying  title, 
still  remains  to  be  considered. 

Allegation  of  General  Freehold  Title. 

Where  a  title  of  possession  is  inapplicable  or  insufficient,  it 
is  not  always  necessary  to  allege  the  title  in  its  full  and  pre- 
cise extent ;  for  in  lieu  of  this,  it  is  occasionally  sufficient  to 
allege  what  may  be  called  a  general  freehold  title.  In  a  plea 
in  trespass  quare  clausum  f regit ^  or  an  avowry  in  replevin,^  if 
the  defendant  claim  an  estate  of  freehold  in  the  locus  in  quo, 
he  is  allowed  to  plead  generally  that  the  place  is  his  "  close, 
soil,  and  freehold.^'  This  is  called  the  plea  or  avowry  of 
liherum  tenementum  (free-holding). 

This  allegation  of  a  general  freehold  title  will  be  sustained 
by  proof  of  any  estate  of  freehold,  whether  in  fee,  in  tail,  or 

12  Saund.  180  a,  n.  9;  Wiscot'a  Allen,  Cro.  Eliz.  438 ;  Childes  y.  West- 
Case,    2    Co.   Kep.  61  b ;    Bateman    v.    cot,  ibid.  482  ;  Dy.  91  b. 

2  1  Saund.  347  d,  n.  6. 


RULES  TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  351 

for  life  only,  and  whether  in  possession  or  expectant  on  the 
determination  of  a  term  of  years.^  But  it  does  not  apply  to  the 
case  of  a  freehold  estate  in  remainder  or  reversion,  expectant 
on  a  particular  estate  of  freehold,  nor  to  copyhold  tenure. 

Tha  p1^n  '^'^  o^r^xur'Y  ni  ]ihf^rum,  Unp.m.p.ntMW,  is  the  only  case 
of_usual  occurrence  in  modern  practice  in  which  the  allegation 
of  a  peneral  freehold  title,  in  lieu  of  a  precise  alleviation  of 
titl^  is  sufficient.^ 

In  alleging  a  general  freehold  title.^  it  is  not  necessary  (as 
appears  by  the  above  example)  to  show  its  commencement. 

II.  Where  a  Party  alleges  Title  in  his  Adversary. 

The  rule  generally  applicable  upon  this  subject  is  the 
following :  — 

It  is  not  necessary  to  allege  Title  more  Precisely  than 
IS  sufficient  to  show  a  Liability  in  the  Party  charged  or 
TO  defeat  his  Present  Claim. 

Excejpt  as  far  as  these  objects  may  require,  a  party  is  not 
compellable  to  show  the  precise  estate  which  his  adversary 
holds,  even  in  a  case  where,  if  the  same  person  were  pleading 
his  own  title,  such  precise  allegation  would  be  necessary. 
The  reason  of  this  difference  is,  that  a  party  must  be  pre- 
sumed to  be  ignorant  of  the  particulars  of  his  adversary'^ 
tiil£,  though  he  is  bound  to  know  his  own.^ 

When  sufficient  to  allege  a  Title  op  Possession. 

To  answer  the  purpose  of  showing  a  liability  in  the  party 
charged,  according  to  the  rule  here  given,  it  is.  in  most  cases, 
sufQcient  to  allege  a  title  of  possession^  the  forms  of  which  are 

1  See  5  Henry  VII.  10  a,  pi.  2,  which  general  freehold  title.  (Doct.  PI.  289.) 
shows,  that  where  there  is  a  lease  for  It  occurs  also  in  the  count  on  a  writ  of 
years  it  must  be  replied  in  confession  entry  siir  disseizin  (on  a  disseisin) 
and  avoidance,  and  is  no  ground  for  brought  by  tenant  for  life  or  in  tail, 
traversing  the  plea  of  liberum  tene-  (Booth,  177;  33  Hen.  VI.  14  b;  Care- 
mentum.  swell  v.  Vaughan,  2  Saund.  30.) 

2  See  1  Saund.  347  d,  n.  6.  This  »  Rider  v.  Smith,  3  T.  R.  766; 
form  of  allegation  occurred,  however,  Derisley  v.  Custance,  4  T.  R.  77 ;  The 
in  the  now  disused  actions  of  assize,  the  Attorney-General  v.  Meller,  Hardr.  459, 
count  or  plaint  in  which  lays  only  a 


352  COMMON-LAW  PLEADING. 

similar  to  those  in  which  the  same  kind  of  title  is  alleged  in 
favor  of  the  party  pleading. 

A  title  of  possession,  however,  can  not  be  sustained  in  evi- 
dence, except  by  proving  some  present  interest  in  chattels,  qt 
actual  posses^i^v  ^^  1^"*^  If,  therefore,  the  interest  be  bv 
way  of  reversion_or  remainder,  it  must  be  laid  accordingly. 
and  the  title  of  possession  is  inapplicable.  So,  there  are 
cases  in  which  to  charge  a  party  with  mere  possession  would 
not  be  sufficient  to  show  his  liability. 

Example :  In  declaring  against  a  party  in  debt  for  rent,  as 
assignee  of  a  term  of  years,  it  would  not  be  sufficient  to  show 
that  he  was  possessed,  but  it  must  be  shown  that  he  was  possessed 
as  assignee  of  the  term. 

Where  Superior  Title  must  be  shown. 

Where  a  title  of  possession  is  thus  inapplicable  or  insuffi- 
cient, and  some  other  or  superior  title  must  be  shown,  it  is  yet 
not  necessary  to  allege  the  title  of  an  adversary  with  as  much 
precision  as  in  the  case  where  a  party  is  stating  his  own ;  ^ 
and  it  seems  sufficient  that  it  be  laid  fully  enough  to  show 
the  liability  charged.  Therefore,  though  it  is  the  rule, 
with  respect  to  a  man's  own  title,  that  the  commencement  of 
particular  estates  should  he  shotvn,  unless  alleged  by  way  of 
inducement,  yet,  in  pleading  the  title  of  an  adversary,  it 
seems  that  this  is,  generally,  not  necessary .^  So,  in_cases_ 
where  it.bp.ppi^ns  to  be  requisite  to  show  whence  the  adver- 
sary derived  his  title,  this  mny  bpi  flnnf>  with  less  precision 
than  wherR  n  man  alleges  his  own.  And,  generally,  it  is 
sufficient  to  plead  such  title  by  a  que  estate  ;  that  is,  to  allege 
that  the  opposite  party  has  the  same  estate,  or  that  the  same 
estate  is  vested  in  him,  as  has  been  precedently  laid  in  some 
other  person,  without  showing  in  what  manner  the  estate 
passed  from  the  one  to  the  other.^ 

Example :  In  debt,  where  the  defendant  is  charged  for  rent, 
as  assignee  of  the  term,  after  several  mesne  assignments,  it  is 

1  Com.  Dig.  Pleader,  C.  42  ;  Hill  v.  see  the  Attorney-General  v.  Meller, 
Saunders,  4  Barn.  &  Cress.  536.  Hardr.  459  ;  Doct.  PI.  302  ;  Com.  Dig. 

2  Blake  v.  Foster,  8  T.  R.  487.  Pleader,  E.  23,  E.  24 ;  Co.  Litt.  121  a. 
*  As  to  making  title  by  a  que  estate. 


RULES   TO   PRODUCE   CERTAINTY  IN   THE  ISSUE.  353 

sufficient,  after  stating  the  original  demise,  to  allege  that,  "  after 
making  the  said  indenture,  and  during  the  term  thereby  granted, 

to  xoit,  on  the day  of ,  m  the  year ,  at ,  all  the 

estate  and  interest  of  the  said  E.  -F."  (the  original  lessee)  "  of  and 
in  the  said  demised  premises,  by  assignment,  came  to  and  vested 
in  the  said  C.  D. ;  "  without  further  showing  the  nature  of  the 
mesne  assignments.^ 

But,  if  the  case  be  reversed,  that  is,  if  the  plaintiff,  claim- 
ing as  assignee  of  the  reversion,  sue  the  lessee  for  rent,  he 
must  precisely  show  the  conveyances,  or  other  media  of  title, 
by  which  he  became  entitled  to  the  reversion ;  and  to  say, 
generally,  that  it  came  by  assignment,  will  not,  in  this  case, 
be  sufficient,  without  circumstantially  alleging  all  the  mesne 
assignments.^  Upon  the  same  principle,  if  title  be  laid  in  an 
adversary  by  descent,  as,  for  example,  where  an  action  of 
debt  is  brought  against  an  heir  on  the  bond  of  his  ancestor,  it 
is  sufficient  to  charge  him  as  heir,  without  showing  how  he  is 
heir,  viz.,  as  son,  or  otherwise  ;^  but  if  a  party  entitle  himself 
by  inheritance,  we  have  seen  that  the  mode  of  descent  must 
be  alleged. 

Averments  of  Title  must  be  Strictly  Proved. 

The  manner  of  showing  title,  both  where  it  is  laid  in  the 
party  himself,  or  the  person  whose  authority  he  pleads,  and 
where  it  is  laid  in  his  adversary,  having  been  now  considered, 
it  may  next  be  observed,  that  the  title  so  shown  must  gen- 
erally, when  issue  is  taken  upon  it,  be  strictly  proved.  With 
respect  to  the  allegations  of  place,  time,  quantity,  and  value, 
it  has  been  seen,  that  when  issue  is  taken  upon  them,  they, 
in  most  cases,  do  not  require  to  be  proved  as  laid  —  at  least, 
if  laid  under  a  videlicet.  But  with  respect  to  title,  it  is,  ordi- 
narily, of  the  substance  of  the  issue;  and,  therefore,  under 
the  doctrine  of  variance  requires  to  be  maintained  accurately 
by  the  proof. 

1  1  Saund.  112,  n.  1  ;  The  Attorney-  ^  1  Saund.  uhi  supra  ;  Pitt  v.  Russell,, 
General  v.  Meller,  Hardr.  459 ;  The  Duke    3  Lev.  19. 

of  Newcastle  v.  Wright,  1  Lev.  190;  ^  Denham  v.  Stephenson,  1  Salk.  355. 
Derisley  v.  Custance,  4  T.  R.  77. 

23 


354  COMMON-LAW   PLEADING. 

Example :  In  an  action  on  the  case,  the  plaintiff  alleged,  in 
his  declaration,  that  he  demised  a  house  to  the  defendant  for 
seven  years,  and  that,  during  the  term,  the  defendant  so  negli- 
gently kept  his  fire,  that  the  house  was  burned  down ;  and  the 
defendant  having  pleaded  non  demisit  modo  et  forma  (he  did  not 
demise  in  manner  and  form),  it  appeared  in  evidence,  that  the 
plaintiff  had  demised  to  the  defendant  several  tenements,  of 
which  the  house  in  question  was  one  ;  but  that,  with  respect  to 
this  house,  it  was,  by  an  exception  in  the  lease,  demised  at  will 
only.  The  court  held,  that,  though  the  plaintiff  might  have 
declared  against  the  defendant  as  tenant  at  will  only,  and  the 
action  would  have  lain,  yet,  having  stated  a  demise  for  seven 
years,  the  proof  of  a  lease  at  will  was  a  variance,  and  that  in  sub- 
stance, not  in  form  only  ;  and,  on  the  ground  of  such  variance, 
judgment  was  given  for  the  defendant.^ 

Exceptions  to  Rule  Y. 
The  rule  which  requires  that  title  should  be  shown  having 
been  now  explained,  it  will  be  proper  to  notice  certain  excep- 
tions to  which  it  is  subject. 

(1)  Estoppel. 
No  title  need  be  shown  where  the  opposite  party  is  estopped 
from  denying  the  title. 

Examples :  (1)  In  an  action  for  goods  sold  and  delivered,  it  is 
unnecessary,  in  addition  to  the  allegation  that  the  plaintiff  sold 
and  delivered  them  to  the  defendant,  to  state  that  they  were  the 
goods  of  the  plaintiff ;  ^  for  a  buyer  who  has  accepted  and  enjoyed 
the  goods  cannot  dispute  the  title  of  the  seller. 

(2)  In  debt  or  covenant,  brought  by  the  lessor  against  the 
lessee,  on  the  covenants  of  the  lease,  the  plaintiff  need  allege  no 
title  to  the  premises  demised;  because  a  tenant  is  estopped  from 
denying  his  landlord's  title. 

On  the  other  hand,  however,  a  tenant  is  not  bound  to  admit 
title  to  any  extent  greater  than  might  authorize  the  lease ; 
and,  therefore,  if  the  action  be  brought  not  by  the  lessor  him- 
self, but  by  his  heir,  executor,  or  other  representative  or 
assignee,  the  title  of  the  former  must  be  alleged,  in  order  to 
show  that  the  reversion  is  now  legally  vested  in  the  plaintiff, 
in  the  character  in  which  he  sues.     Thus,  if  he  sue  as  heir, 

1  Cudlip  V.  Bundle,  Carth.  202.  a  Bull.  N.  P.  139. 


RULES  TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  355 

he  must  allege  that  the  lessor  was  seised  in  fee ;  for  the 
tenant  is  not  bound  to  admit  that  he  was  seised  in  fee ;  and, 
unless  he  was  so,  the  plaintiff  can  not  claim  as  heir. 

(2)  Avowries  and  Cognizances.  "7  * 

Another  exception  to  the  general  rule,  requiring  title  to  be 
shown,  has  been  introduced  by  statute,  and  is  as  follows  : 

In  making  avowry  or  cognizance  in  replevin,  upon  distresses 
for  rent,  quit-rents,  reliefs,  heriots,  or  other  services,  the  de- 
fendant is  enabled,  by  the  provision  of  the  act  11  Geo.  IT. 
c.  19,  s.  22, 

"  to  avow  or  make  cognizance  generally  that  the  plaintiff  in  re- 
plevin, or  other  tenant  of  the  lands  and  tenements  whereon  such 
distress  was  made,  enjoyed  the  same,  under  a  grant  or  demise, 
at  such  a  certain  rent,  during  the  time  wherein  the  rent  distrained 
for  accrued,  which  rent  was  then  and  still  remains  due,  or  that 
the  place  where  the  distress  was  taken  was  parcel  of  such  certain 
tenements  held  of  such  honor,  lordship,  or  manor,  for  which 
tenements  the  rent,  relief,  heriot,  or  other  service  distrained  for, 
was,  at  the  time  of  such  distress,  and  still  remains,  due,  without 
further  setting  forth  the  grant,  tenure,  demise,  or  title  of  such 
landlord  or  landlords,  lessor  or  lessors,  owner  or  owners  of  such 
manor,  any  law  or  usage  to  the  contrary  notwithstanding."  ^ 

Rule  VI.    The  Pleadings  must  show  Authority.^ 

When  a  party  has  occasion  to  justify  under  a  writ,  war- 
rant, precept,  0£jany  other  authority  whatever,  he  must,  as  a 
rule,  set  it  forth  particularly  in  his  pleading.  And  he  ought 
also  to  show  that  he  has  substantially  pursued  such  authority. 

Example  :  In  trespass  for  taking  a  mare,  the  defendant  pleaded 
that  Sir  J.  S.  was  seised  in  fee  of  the  manor  of  B.,  and  that  he, 
and  all  those  whose  estate  he  had  in  the  said  manor,^  had  always 
held  a  lawful  court  twice  a  year,  to  which  the  tenants  of  the 
manor  used  to  resort;  that  such  as  had  right  of  common  were 
appointed  by  the  steward  to  be  of  the  jury ;  that  by-laws  were 

1  See  remarks  on  this  enactment  and  283  a ;  ibid.  303  b  ;  Com.  Dig.  Pleader, 
on  the  previous  state  of  the  law,  2  Saiind.  E.  17;  1  Sauud.  298,  n.  1;  Lamb  v. 
284  c,  n.  3.  Mills,  4  Mod.  377  ;  Matthews  v.  Gary,  3 

2  "  Kegnlarly,    whensoever    a    man  Mod.  137  ;  s.  c.  Carth.  73  ;  Collet  v.  Lord 
doth  anything  by  force  of  a  warrant  or  Keith,  2  East,  260  ;  Solw.  N.  P.  826.) 
authority,  he  must  plead  it."     (Co.  Litt.         ^  instance  of  pleading  a.  que  estate. 


356  COMMON-LAW   PLEADING. 

accustomed  to  "be  made  there,  and  that  such  as  had  right  of 
common  obeyed  those  laws  or  paid  a  forfeiture  of  a  reasonable 
sum  to  be  imposed  on  them ;  that  at  one  of  these  courts  a  jury- 
was  sworn  and  a  law  made,  that  every  person  who  had  common 
should  pay  forty  shillings  for  depasturing  his  cattle  on  any  place 
where  corn  was  standing;  that  the  plaintiff  had  right  of  common, 
and  permitted  his  sheep  to  depasture  on  certain  ground  on  which 
corn  was  standing ;  that  such  offence  was  presented  at  the  next 
court ;  and  that  the  defendant,  being  bailiff  of  the  lord  of  the  said 
manor,  did  take  the  mare  for  the  forfeiture,  etc.  Upon  demurrer, 
the  court  held  the  plea  bad ;  "  for  the  bailiff  can  not  take  a  for- 
feiture ex  officio.  There  must  be  a  precept  directed  to  him  for 
that  purpose,  which  he  must  show  in  pleading,"  etc.  Aad  judg- 
ment was  given  for  the  plaintiff.^ 

So,  in  all  cases  where  the  defendant  justifies  under  judicial 
process,  he  must  set  it  forth  particularly  in  his  plea,  and  it  is 
not  suffiei-ent  to  allege  fieneralty  that  he  committed  the  act  in 
question  by  virtue  of  a  certain  writ  or  warrant  directed  to 
him.2  But  on  this  subject  tliere  are  some  important  distinc- 
tions as  to  the  degree  of  particularity  which  the  rules  of 
pleading  in  different  cases  require :  — 

(1)  It  is  not  necessary  that  any  person,  justifying  under 
judicial  process,  should  set  forth  the  cause  of  action  in  the 
original  suit  in  which  that  process  issued.^ 

(2)  If  the  justification  be  by  the  officer  executing  the  writ, 
he  is  required  to  plead  such  writ  only,  and  not  the  judgment 
on  which  it  was  founded,  for  his  duty  obliged  him  to  execute 
the  former,  without  inquiring  about  the  validity  or  existence 
of  the  latter.  But,  if  the  justification  be  by  a  party  to  the 
suit,  or  by  any  stranger,  except  an  officer,  the  judgment,  as 
well  as  the  writ,  must  be  set  forth. ^ 

(3)  Where  it  is  an  officer  who  justifies,  he  must  sliQajJikat 
the  writ  was  returned.,  if  it  was  such  as  it  was  his  duty  to 

1  Lamb  v.  Mills,  4  Mod.  377.  3  Lev.  20  ;  per  De  Grev,  C.  J.,  Barker  v. 

2  1  Saund.  298,  n.  1 ;  Co.  Litt.  303  b.    Braham,  3  Wils.  368."    But  in  Britton 
8  Rowland  v.  Veale,  Cowp.  18;  Belk    v.  Cole,  1  Salk.  408,  it  is  said  that  the 

V.  Broadbent,  3  T.  R.   183 ;    1  Saund.  court   "  seemed    to  hold   that,   if    one 

92,  n.  2.  comes  in  aid  of  the  officer  at  his  re- 

*  Per  Holt,  C.  J.,   Britton  v.  Cole,  quest,  he  may  justify  as  the  officer  may 

Carth.  443  ;  s.  c.  1  Salk.  408 ;  Turner  do."      (See    Morse   v.  James,   Willes, 

V.  Felgate,  1  Lev.  95  ;  Cotes  v.  Michill,  122.) 


RULES  TO  PRODUCE   CERTAINTY  IN  THE  ISSUE.  357 

return,  and  all  mesne  process  is  of  that  description.  But,  as 
a  rule,  a  writ  of  execution  need  not  be  returned,  and  there- 
fore no  return  of  it  need  generally  be  alleged.^  However,  it 
is  said  that,  "  if  any  ulterior  process  in  execution  is  to  be 
resorted  to  to  complete  the  justification,  there  it  may  be  neces- 
sary to  show  to  the  court  the  return  of  the  prior  writ,  in  order 
to  warrant  the  issuing  of  the  other."  2  Again,  there  is  a  dis- 
tinction as  to  this  point  between  a  principal  and  a  subordinate 
officer :  "  The  former  shall  not  justify  under  the  process, 
unless  he  has  obeyed  the  order  of  the  court  in  returning  it ; 
otherwise  it  is  of  one  who  has  not  the  power  to  procure  a 
return  to  be  made."  ^ 

(4)  Where  it  is  necessary  to  plead  the  judgment,  that  may 
be  done  (if  it  was  a  judgment  of  a  superior  court)  without 
setting  forth  any  of  the  previous  proceedings  in  the  suit.* 

(5)  Where  the  justification  is  founded  on  process  issuing 
out  of  an  inferior  English  court,  or  (as  it  seems)  a  court  of 
foreign  jurisdiction,  the  nature  and  extent  of  the  jurisdiction 
of  such  court  ought  to  be  set  forth,  and  it  ought  to  be  shown 
that  the  cause  of  action  arose  within  that  jurisdiction,  though 
a  justification  founded  on  process  of  any  of  the  superior  courts 
need  not  contain  such  allegations.^  And,  in  pleading  a 
judgment  of  inferior  courts,  the  previous  proceedings  are,  in 
some  measure,  stated.  But  it  is  allowable  to  set  them  forth 
with  a  taliter  processum  est  (such  pi'oceedings  were  had)  ; 
thus,  that  A.  B.,  at  a  certain  court,  etc.,  held  at,  etc.,  levied 
his  plaint  against  C.  D.,  in  a  certain  plea  of  trespass  on  the 
case,  or  debt,  etc.  (as  the  case  may  be),  for  a  cause  of  action 
arising  within  the  jurisdiction,  and  thereupon  such  proceed- 
ings were  had,  that  afterwards,  etc.,  it  was  considered  by  the 
said  court  that  the  said  A.  B.  should  recover  against  the  said 
C.  D.,  etc.6 

1  Middleton  y.  Price,  Str.  1184;  s.c.  1  Ld.  Raym.  633;  s.  c.  1  Salk.  409; 
1  "Wils.    17;    Cheasley   v.    Barnes,   10    Moore  n.  Taylor,  5  Tauut.  69. 

East,  73  ;  Rowland  v.  Veale,  Cowp.  18;         *  See   the   precedents,   9  Went.  22, 

Hoe's  Case,  5  Co.  Rep.  90;  1  Saund.  92,  53,  120,  3.51. 

n.  2.  5  Collet  v.  Lord  Keith,  2  Ea.st,  274 ; 

2  Cheasley  v.  Barnes,  uhi  supra.  Moravia  v.  Sloper,  Wille-s,  30. 

8  Per  Holt,  C.  J.,  Freemen  v.  Blewett,         6  1    Saund.   92,   n.   2  ;    Rowland   u 


358  COMMON-LAW  PLEADING. 


Exception  to  Rule. 

Notwithstanding  the  general  rule  under  consideration,  it 
is  allowable,  where  an  authority  may  he  constituted  verbally 
and  generally,  to  plead  it  in  general  terms. 

Example  :  In  replevin,  where  the  defendant  makes  cognizance, 
confessing  the  taking  of  the  goods  or  cattle,  as  bailiff  of  another 
person,  for  rent  in  arrear,  or  as  damage- feasant,  it  is  sufficient  to 
say  that,  *'  as  bailiff  of  the  said  E.  T.,  he  well  acknowledges  the 
taking,  etc.,  as  for  and  in  the  name  of  a  distress,^'  etc.,  without 
showing  any  warrant  for  that  purpose.-^ 

Averments  of  Authority  must  be  Strictly  Proved. 

The  allegation  of  authority,  like  that  of  title,  must,  gener- 
ally, be  strictly  proved  as  laid. 

The  above-mentioned  particulars  of  place,  time,  quality, 
quantity,  and  value,  tiames  of  p>er8ons,  title,  and  authority, 
though,  in  this  work,  made  the  subject  of  distinct  rules,  with 
a  view  to  convenient  classification  and  arrangement,  are  to  be 
considered  but  as  examples  of  that  infinite  variety  of  circum- 
stances, which  it  may  become  necessary,  in  different  cases 
and  forms  of  action,  to  particularize,  for  the  sake  of  producing 
a  certain  issue ;  for  it  may  be  laid  down  as  a  comprehensive 
rule,  that  — 

Rule  VII.     In  General,  whatever  is  Alleged  in  Pleading, 
must  be  Alleged  with  Certainty.^ 

This  rule,  being  very  wide  in  its  terms,  it  will  be  proper  to 
illustrate  it  by  a  variety  of  examples. 

Jn  pleading  the  performance  of  a  condition  or  covenant,  it  is  a 
rule,  though  open  to  exceptions  that  will  be  presently  noticed, 
that  the  party  must  not  plead  generally  that  he  performed  the 
covenant  or  condition,  but  must  show  specially  the  time,  place, 
and  .manner  of  performance ;  and  even  though  the  subject  to 

Veale,    Cowp.    18  ;    Morse    v.   James,  ^  Matthews  v.  Cary,  3  Mod.  138. 

Willes,  122;  Johnson  v.  Warner,  ibid.         2  Com.  Dig.  Pleader,  C.  17,  C.  22, 
528;  Titley  v.  Foxall,  ibid.  688.  E.  5,  F.  17. 


RtTLES  TO  PRODUCE   CERTAINTY  IN  THE  ISSUE.  859 

be  performed  should  consist  of  several  different  acts,  yet  he 
must  show  in  this  special  way  the  performance  of  each.^ 

Examples:  (1)  In  debt  on  bond,  conditioned  for  the  payment 
of  £30  to  H.  S.,  I.  S.,  and  A.  S.,  tamcito  (so  soon)  as  they  should 
come  to  the  age  of  twenty-one  years,  the  defendant  pleaded  that 
he  paid  those  sums  tarn  cito  as  they  came  of  age,  and  the  plaintiff 
demurred,  because  i_tjw;as  not  shown  when  they  came  of  age,  and 
the  certain  times  of  the  payment.  "  And  for  this  cause  all  the 
court  held  the  plea  to  be  ill ;  for  although  it  be  a  good  plea,  regu- 
larly, to  the  condition  of  a  bond,  to  pursue  the  words  of  the  con- 
dition, and  to  show  the  performance,  yet  Coke  said  there  was 
another  rule,  that  he  ought  to  plead  in  certainty  the  time  and 
place  and  manner  of  the  performance  of  the  condition,  so  as  a 
certain  issue  may  be  taken ;  otherwise  it  is  not  good.  Wherefore, 
because  he  did  not  plead  here  in  certainty,  it  was  adjudged  for 
the  plaintiff. 

(2)  "And  between  the  same  parties,  in  another  action  of  debt 
upon  an  obligation,  the  condition  being  for  performance  of  lega- 
cies in  such  a  will,  he  pleaded  performance  generally,  and,  not 
showing  the  will,  nor  what  the  legacies  were,  it  was  adjudged  for 
the  plaintiff."  ^ 

(3)  In  debt  on  a  bond,  conditioned  for  the  performance  of 
several  specific  things,  "the  defendant  p\ea,ded  j^erformav  it  omnia 
(he  performed  all),  etc.  Upon  demurrer  it  was  adjudged  an  ill 
plea;  for,  the  particulars  being  expressed  in  the  condition,  he 
ought  to  plead  to  each  particularly,  by  itself."  ^ 

Exceptions  to  Rule. 

This  rule,  requiring  performance  to  be  specially  shown, 
admits  of  relaxation  where  the  subject  comprehends  such  multi- 
plicity of  matter  as  would  lead  to  great  prolixity  ;  and  a  more 
general  mode  of  'allegation  is  in  such  cases  allowable.  It  is 
open  also  to  the  following  exceptions :  Where  the  condition  is 
for  the  performance  of  matters  set  forth  in  another  instru- 

1  Com.  Dig.  Pleader,  E.  25,  E.  26,  2  Vent.  I.'jG  ;   Lord  Evers  v.  Buckton, 

2  W.  33  ;    Halsey   v.   Carpenter,    Cro.  Benl.  65 ;  Braban  r.  Bacon,  Cro.  Eliz. 

Jac.  359;  Wimbleton  v.  lioldrip,  1  Lev.  916;  Coduer  v.  Dalby,  Cro.  Jac.  363; 

303;    Woodcock  v.  Cole,   1    Sid.   215;  Leneret  v.  Rivet,  ibid.  503;    1   Sauud 

Stone  V.  Bli.ss,  1  Bul.st.  43  ;  Fitzpatrick  116,  n.  1. 

V.    Robinson,    1    Sliow.    1  ;    Austin   v.         ^  Halsey  v.  Carpenter,  uhi  supra. 
Jervoise,  Hob.  69,  77  ;  Brown  v.  liands,         ^  Wimbleton  v.  Holdrip,  uhi  supra. 


360  COMMON-LAW  PLEADING. 

ment,  and  these  matters  are  in  an  affirmative  and  absolute 
form,  and  neither  in  the  negative  nor  the  disjunctive,  a 
general  plea  of  performance  is  sufficient.  And  where  a  bond 
is  conditioned  for  indemnifying  the  plaintiff  from  the  conse- 
quences of  a  certain  act,  a  general  plea  of  noii  damnificatus, 
viz.,  that  he  has  not  been  damnified,  is  proper,  without  showing 
how  the  defendant  has  indemnified  him.  These  variations 
from  the  ordinary  rule,  and  the  principles  on  which  they  are 
founded,  will  be  explained  hereafter. 

When,  in  any  of  these  excepted  cases,  however,  a  general 
-plea  of  performance  is  pleaded,  the  rule  under  discussion  still 
requires  the  plaintiff  to  show  particularly  in  his  replication  in 
what  way  the  covenant  or  condition  has  been  broken  ;  for,  other- 
wise, no  sufficiently  certain  issue  would  be  attained. 

Example:  In  an  action  of  debt  on  a  bond,  conditioned  for 
performance  of  affirmative  and  absolute  covenants  contained  in  a 
certain  indenture,  if  the  defendant  pleads  generally  (as  in  that 
case  he  may)  that  he  performed  the  covenants  according  to  the 
condition,  the  plaintiff  can  not  in  his  replication  tender  issue  with 
a  mere  traverse  of  the  words  of  the  plea,  viz.,  that  the  defendant 
did  not  perform  any  of  the  covenants,  etc. ;  for  this  issue  would 
be  too  wide  and  uncertain;  but  he  must  assign  a  breach,  showing 
specifically  in  what  particular,  and  in  what  manner,  the  covenants 
have  been  broken.^ 

Not  only  on  the  subject  of  performance,  but  in  a  variety  of 
other  cases,  the  books  afford  illustration  of  this  general  rule. 

Examples  :  (1)  In  debt  on  bond,  the  defendant  pleaded  that  the 
instrument  was  executed  in  pursuance  of  a  certain  corrupt  con- 
tract, made  at  a  time  and  place  specified,  between  the  plaintiff 
and  defendant,  whereupon  there  was  reserved  above  the  rate  of 
£5  for  the  forbearing  of  £100  for  a  year,  contrary  to  the  statute 
in  such  case  made  and  provided.  To  this  plea  there  was  a 
demurrer,  assigning  for  cause,  that  the  particulars  of  the  contract 
were  not  specified,  nor  the  time  of  forbearance,  nor  the  sum  to  be 
forborne,  nor  the  sum  to  be  paid  for  such  forbearance.  And  the 
court  held  that  the  plea  was  bad,  for  not  setting  forth  particularly 
the  corrupt  contract  and  the  usurious  interest ;  and  Bayley,  J., 

*  Plomer  v.  Ross,  5  Taunt.  386 ;  per  Lord  Maiisfield,  Sayre  v.  Minns,  Cowp 
578;  Com.  Dig.  Pleader,  F.  14. 


RULES   TO   PKODUCE   CERTAINTY  IN   THE   ISSUE.  361 

observed,  that  he  "had  always  understood  that  the  party  who 
pleads  a  contract  must  set  it  out,  if  he  be  a  party  to  the 
contract."  ^ 

(2)  To  an  action  on  the  case  for  a  libel,  imputing  that  the 
plaintiff  was  connected  with  swindlers  and  common  informers, 
and  had  also  been  guilty  of  deceiving  and  defrauding  divers  per- 
sons, the  defendant  pleaded  that  the  plaintiff  had  been  illegally, 
fraudulently,  and  dishonestly  concerned  with,  and  was  one  of,  a 
gang  of  swindlers  and  common  informers,  and  had  also  been  guilty 
of  deceiving  and  defrauding  divers  persons  with  whom  he  had 
had  dealings  and  transactions.  To  this  plea  there  was  a  special 
demurrer,  assigning  for  cause,  inter  alia  (among  other  things), 
that  the  plea  did  not  state  the  particular  instances  of  fraud  ;  and 
though  the  Court  of  Common  Pleas  gave  judgment  for  the  defend- 
ant, this  judgment  was  afterwards  reversed  upon  writ  of  error, 
and  the  plea  adjudged  to  be  insufficient,  on  the  ground  above 
mentioned.'^ 

(3)  In  an  action  of  trespass  for  false  imprisonment,  the  de- 
fendants pleaded,  that  before  the  said  time,  when,  etc.,  certain 
persons  unknown  had  forged  receipts  on  certain  forged  dividend 
warrants,  and  received  the  money  purporting  to  be  due  thereon, 
in  Bank  of  England  notes,  amongst  which  was  a  note  for  £100, 
which  was  afterwards  exchanged  at  the  bank  for  other  notes, 
amongst  which  was  one  for  £10,  the  date  and  number  of  which 
were  afterwards  altered ;  that  afterwards,  and  a  little  before  the 
said  time,  when,  etc.,  the  plaintiff  was  suspicioushj  possessed  of 
the  altered  note,  and  did  in  a  suspicious  manner  dispose  of  the 
same  to  one  A.  B.,  and  afterwards,  in  a  suspicious  manner,  left 
England  and  went  to  Scotland ;  whereupon  the  defendants  had 
reasonable ,  cause  to  suspect,  and  did  suspect,  that  the  plaintiff 
had  forged  the  said  receipts,  and  so  proceeded  to  justify  the 
taking  and  detaining  his  person,  to  be  dealt  with  according  to 
law.  Upon  general  demurrer,  this  plea  was  considered  as  clearly 
bad,  because  it  did  not  show  the  grou7ids  of  suspicion  with  suffi- 
cient certainty  to  enable  the  court  to  judge  of  their  sufficiency ; 
and  it  was  held  that  the  use  of  the  word  sttsjnciousli/  would  not 
compensate  that  omission.' 

(4)  In  an  action  of  trover,  for  taking  a  ship,  the  defendant 
pleaded  that  he  was  captain  of  a  certain  man-of-war,  and  that  he 
seized  the  ship  mentioned  in  the  declaration  as  prize  ;  that  he 
carried  her  to  a  certain  port  in  the  East  Indies ;  and  that  the 

1  Hill  V.  Montagu,  2  M.  &  S.  377  ;  2  j' Anson  v.  Stuart,  1  T.  R.  748. 

Hiuton  V.  Roffey,  3  Mod.  35,  S.  P.  '  Mure  v.  Kaje,  4  Taunt.  34. 


362  COMMON-LAW   PLEADING. 

admiralty  court  there  gave  sentence  against  the  said  ship  as  prize. 
Upon  demurrer,  it  was  resolved  that  it  was  necessary  for  the  plea 
to  show  some  special  cause  for  which  the  ship  became  a  prize, 
and  that  the  defendant  ought  to  show  who  was  the  judge  that 
gave  sentence  and  to  whom  that  court  of  admiralty  did  belong. 
And  tor  the  omission  of  these  matters  the  plea  was  adjudged 
insufficient.^ 

(5)  In  an  action  of  debt  on  bond,  conditioned  to  pay  so  much 
money  yearl}^,  while  certain  letters  patent  were  in  force,  the 
defendant  pleaded,  that  from  such  a  time  to  such  a  time  he  did 
pay,  and  that  then  the  letters  patent  became  void  and  of  no  force. 
The  plaintiff  having  replied,  it  was  adjudged,  on  demurrer  to  the 
replication,  that  the  plea  was  bad,  because  it  did  not  show  hoiv 
the  letters  patent  became  void.^ 

(6)  Where  the  defendant  justified  an  imprisonment  of  the 
plaintiff,  on  the  ground  of  a  contempt  committed  ^aw/ac^is  quam 
verbis  (as  well  by  acts  as  by  words),  the  plea  was  held  bad  upon 
demurrer,  because  it  set  forth  the  contempt  in  this  general  way, 
without  showing  its  nature  more  particularly.^ 

With  respect  to  all  points  on  which  certainty  of  allegation 
is  required,  it  may  be  remarked  that  the  allegation,  when 
brought  into  issue,  must  commonly  be  proved,  in  substance, 
as  laid  ;  and  that  the  relaxation  from  the  ordinary  rule  on 
this  subject,  which  is  allowed  with  respect  to  place,  time, 
quantity,  and  value,  does  not,  generally  speaking,  extend  to 
other  particulars. 

Subordinate  Rules. 

Such  are  the  principal  rules  which  tend  to  certainty ;  but 
it  is  to  be  observed,  that  these  receive  considerable  limita- 
tion and  restriction  from  some  other  rules  of  a  subordinate 
kind,  to  the  examination  of  which  it  will  now  be  proper  to 
proceed. 

(1)  It  is  not  necessary  in  pleading  to  state  that  which  is 
merely  matter  of  evidence.'^ 

1  Beak  v.  Tyrrell,  Carth.  31.  and  therefore  the  matter  in  fact  shall 

2  Lewis  V.  Preston,  1  Show.  290;  be  pleaded."  ( Bowman's  Case,  9  Co. 
s.  c.  Skin.  303.  Rep.  9  b ;  and  see  9  Ed.  IIL  5  b,  6  a, 

3  Collet  V.  The  Bailiffs  of  Shrews-  there  cited ;  Eaton  v.  Southby,  Willes, 
bury,  2  Leo.  34.  131  ;  Jermy  v.  Jenny,  1  Ld.  Raym.   8  j 

*  "  Evidence  shall  never  be  pleaded,    Groenvelt  v.  Burnell,  Carth.  491.) 
because  it  tends  to  prove  matter  in  fact  j 


RULES  TO  PRODUCE   CERTAINTY   IN   THE  ISSUE.  363 

In  other  words,  H  is  not  necessary,  in  alleging  a  fact,  to  state 
such  circumstances  as  merely  tend  to  prove  the  truth  of  the  fact. 

Example  :  In  an  action  of  replevin,  for  seventy  cocks  of  wheat, 
the  defendant  avowed  under  a  distress  for  rent  arrear.  The 
plaintiff  pleaded  in  bar,  that  before  the  said  time,  when,  etc.,  one 
H.  L.  had  recovered  judgment  against  G.  S.,  and  sued  out  execu- 
tion ;  that  G.  S.  was  tenant  at  will  to  the  defendant,  and  had 
sown  seven  acres  of  the  premises  with  wheat,  and  died  possessed 
thereof  as  tenant  at  will ;  that,  after  his  death,  the  sheriff  took 
the  said  wheat  in  execution,  and  sold  it  to  the  plaintiff ;  that  the 
plaintiff  suffered  the  wheat  to  grow  on  the  locals  in  quo  till  it  was 
ripe  and  fit  to  be  cut;  that  he  afterwards  cut  it,  and  made  it  into 
cocks,  whereof  the  said  seventy  cocks  were  parcel ;  that,  the  said 
cocks  being  so  cut,  the  plaintiff  suffered  the  same  to  lie  on  the 
said  seven  acres  until  the  same,  in  the  course  of  husbandry,  were 
fit  to  be  carried  away ;  and  that,  while  they  were  so  lying,  the 
defendant,  of  his  own  wrong,  took  and  distrained  the  same,  under 
pretence  of  a  distress,  the  said  wheat  not  then  being  fit  to  be 
carried  away,  according  to  the  course  of  husbandry,  etc.  The 
defendant  demurred,  and,  among  other  objections,  urged  that  it 
ought  to  have  been  particularly  shown  how  long  the  wheat  re- 
mained on  the  land  after  the  cutting,  that  the  court  might  judge 
whether  it  were  a  reasonable  time  or  not.  But  the  court  decided 
against  the  objection.  "  For  though  it  is  said  (in  Co.  Litt.  56  b) 
that,  in  some  cases,  the  court  must  judge  whether  a  thing  be 
reasonable  or  not,  as  in  case  of  a  reasonable  fine,  a  reasonable 
notice,  or  the  like,  it  is  absurd  to  say  that,  in  the  present  case, 
the  court  must  judge  of  the  reasonableness  ;  for,  if  so,  it  ought  to 
have  been  set  forth  in  the  plea,  not  only  how  long  the  corn  lay 
on  the  ground,  but  likewise  what  sort  of  weather  there  was  during 
that  time,  and  many  other  incidents,  which  would  be  ridiculous 
to  be  inserted  in  a  plea.  We  are  of  opinion,  therefore,  that  this 
matter  is  sufficiently  averred,  and  that  the  defendant  might  have 
traversed  it,  if  he  had  pleased,  and  then  it  would  have  come 
before  a  jury,  who,  upon  hearing  the  evidence,  would  have  been 
the  proper  judges  of  it."  ^ 

The  reason  of  this  rule  is  evident,  if  we  revert  to  the 
general  object  which  all  the  rules,  tending  to  certainty,  con- 
template, viz.,  the  attainment  of  a  certain  issue.  This  implies 
(as  has  been  shown)  a  development  of  the  question  in  contro- 

1  Eaton  V.  Southby,  Willes,  131, 


364  COMMON-LAW  PLEADING. 

versy  in  a  specific  shape  ;  aud  it  has  been  elsewhere  attempted 
to  define,  in  a  general  way,  the  degree  of  specification  with 
wbich  this  should  be  developed.  But,  if  that  object  be 
attained,  there  is,  generally,  no  necessity  for  further  minute- 
ness in  the  pleading;  and,  therefore,  those  subordinate 
facts,  which  go  to  make  up  the  evidence  by  which  the  affirm- 
ative or  negative  of  the  issue  is  to  be  established,  do  not 
require  to  be  alleged,  and  may  be  brought  forward,  for  the 
first  time,  at  the  trial,  when  the  issue  comes  to  be  decided. 
Thus,  in  the  above  example,  if  we  suppose  issue  joined, 
whether  the  wheat  cut  was  afterwards  suffered  to  lie  on  the 
ground  a  reasonable  time  or  not,  there  would  have  been 
sufficient  certainty,  without  showing  on  the  pleadings  any  of 
those  circumstances  (such  as  the  number  of  days,  the  state 
of  the  weather,  etc.)  which  ought  to  enter  into  the  considera- 
tion of  that  question.  These  circumstances,  being  matter  of 
evidence  only,  ought  to  be  proved  before  the  jury,  but  need 
not  appear  on  the  record. 

This  is  a  rule  so  elementary  in  its  kind,  and  so  well 
observed  in  practice,  as  not  to  have  become  frequently  the 
subject  of  illustration  by  decided  cases ;  and  (for  that  reason, 
probably)  is  little,  if  at  all,  noticed  in  the  digests  and  treat- 
ises. It  is,  however,  a  rule  of  great  importance,  from  the 
influence  which  it  has  on  the  general  character  of  English 
pleading ;  and  it  is  this,  perhaps,  more  than  any  other  prin- 
ciple of  the  science,  which  tends  to  prevent  that  minuteness 
and  prolixity  of  detail,  in  which  the  allegations,  under  other 
systems  of  judicature,  are  involved. 

Another  rule,  that  much  conduces  to  the  same  effect,  is 
that  — 

(2)  It  is  not  necessary  to  state  matter  of  which  the  court  takes 
notice  ex  officio?- 

Therefore  it  is  unnecessary  to  state  matter  of  law ,2  for  this 
the  judges  are  bound  to  know,  and  can  apply  for  themselves 
to  the  facts  alleged. 

1  Co.  Litt.  303  b  ;  Com.  Dig.  Pleader,  2  poct.  PI.  102.  Per  Buller,  J.,  The 
C.  78;  Deybel's  Case,  4  Barn.  &  Aid.  243.    King  v.  Lyme  Regis,  Doug.  159. 


RULES   TO   PRODUCE   CERTAINTY  IN  THE   ISSUE.  365 

Example :  If  it  be  stated  in  pleading,  that  an  officer  of  a  cor- 
porate body  was  removed  for  misconduct,  by  the  corporate  body 
at  large,  it  is  unnecessary  to  aver  that  the  power  of  removal  was 
vested  in  such  corporate  body  ;  because  that  is  a  power  by  law 
incidental  to  them,  unless  given  by  some  charter,  by-law,  or  other 
authority,  to  a  select  part  only.^ 

Nor  is  it  the  principles  of  the  common  law  alone,  which  it 
is  unnecessary  to  state  in  pleading.  The  public  statute  law 
falls  within  the  same  reason  and  the  same  rule  ;  as  the  judges 
are  bound,  officially,  to  notice  the  tenor  of  every  public  act  of 
Parliament.2  It  is,  therefore,  never  necessary  to  set  forth  a 
public  statute.^  The  case,  however,  of  private  acts  of  Parlia- 
ment is  different ;  for  these  the  court  does  not  officially  notice,* 
and  therefore,  where  a  party  has  occasion  to  rely  on  an  act  of 
this  description,  he  must  set  forth  such  parts  of  it  as  are 
material.^ 

It  may  be  observed,  however,  that  though  it  is  generally 
unnecessary  to  allege  matter  of  law,  yet  there  is  sometimes 
occasion  to  make  mention  of  it,  for  the  convenience  or  intel- 
ligibility of  the  statement  of  fact, 

Examples  :  (1)  In  an  action  of  assum^jsit  on  a  bill  of  exchange, 
the  form  of  the  declaration  is  to  state  that  the  bill  was  drawn  or 
accepted  by  the  defendant,  etc.  (according  to  the  nature  of  the 
case),  and  that  the  defendant,  as  drawer  or  acceptor,  etc.,  became 
liable  to  pay ;  and,  being  so  liable,  in  consideration  thereof 
promised  to  pay. 

(2)  It  is  sometimes  necessary  to  refer  to  a  public  statute  in 
general  terms,  to  show  that  the  case  is  intended  to  be  brought 
within  the  statute  ;  as,  for  example,  to  allege  that  the  defendant 
committed  a  certain  act  against  the  form  of  the  statute  in  such 
case  made  and  provided  ;  but  the  reference  is  made  in  this  general 
way  only,  and  there  is  no  need  to  set  the  statute  forth. 

This  rule,  by  which  matter  of  law  is  omitted  in  the  plead- 
ings, by  no  means  prevents  (it  will  be  observed)  the  attain- 
ment of  the  requisite  certainty  of  issue.     For  even  though 

1  The  King  v.  Lyme  Kegis,  Doug.  *  Bl.  Com.  ibid. ;  Piatt  v.  Hill,  1  Ld. 
148.  Eaym.  331. 

2  Bl.  Com.  I.  86  *.  6  Boyce  v.  Whitaker,  ubi  supra. 
^  Boyce    v.    Whitaker,    Doug.    97; 

Partridge  v.  Strange,  Plow.  84. 


366  COMMON-LAW  PLEADING. 

the  dispute  between  the  parties  should  turn  upon  matter  of 
law,  yet  they  may  evidently  obtain  a  sufficiently  specific  issue 
of  that  description  without  any  allegation  of  law:  for  ex  facto 
jus  oritur  (from  fact  the  law  arises)  ;  that  is,  every  question 
of  law  necessarily  arises  out  of  some  given  state  of  facts  ;  and 
therefore  nothing  more  is  necessary  than  for  each  party  to 
state,  alternately,  his  case  in  point  of  fact ;  and,  upon  demurrer 
to  the  sufficiency  of  some  one  of  these  pleadings,  the  issue  in 
law  must  at  length  (as  formerly  demonstrated)  arise. 

As  it  is  unnecessary  to  allege  matter  of  law,  so,  if  it  he 
alleged,  it  is  improper  (as  it  has  been  elsewhere  stated)  to 
make  it  the  subject  of  traverse. 

Besides  points  of  law^  there  are  many  other  matters  of  a 
public  kind,  of  which  the  court  takes  official  notice,  and  with 
respect  to  which,  it  is,  for  the  same  reason,  unnecessary  to 
make  allegation  in  pleading,  such  as  matters  antecedently 
alleged  in  the  same  record,^  the  time  of  the  king's  accession, 
his  proclamations,  his  privileges,  the  time  and  place  of  hold- 
ing Parliament,  the  time  of  its  sessions  and  prorogations,  and 
its  usual  course  of  proceeding;  the  ecclesiastical,  civil,  and 
maritime  laws;  the  customary  course  of  descent  in  gavel- 
kind, and  borough-English  tenure;  the  course  of  the  almanac ;2 
the  division  of  England  into  counties,^  provinces,  and  dioceses ; 
the  meaning  of  English  words,  and  terms  of  art  (even  when 
only  local  in  their  use)  ;  legal  weights  and  measures,  and  the 
ordinary  measurement  of  time ;  the  existence  and  course  of 
proceeding  of  the  superior  courts  at  Westminster,  and  the 
other  courts  of  general  jurisdiction  ;  and  the  privileges  of  the 
officers  of  the  courts  at  Westminster.* 

(3)  It  is  not  necessary  to  state  matter  which  would  come  more 
properly  from  the  other  side.^ 


1  Co.  Litt.  303  b;  The  King  v.  *  This  enumeration  is  principally 
KnoUys,  1  Ld.  Eaym.  13.  taken   from   Chit.   PI.    196-204,  where 

2  But  see  Mayor  of  Guilford  v.  further  information  on  the  subject  will 
Clarke,  2  Vent.  247.  be  found. 

3  But  not  the  local  situation  and  5  Com.  Dig.  Pleader,  C.  81 ;  Stowell 
distances  of  the  different  places  in  a  v.  Ld.  Zouch,  Plow.  376  ;  Walsingham's 
county  from  each  other.  (Deybel's  Case,  i'ierf.  564;  St.  John  r.  St.  Jolin,  Hob. 
Case,  4  Barn.  &  Aid.  243.)  78;   Hotham  v.  East   India  Company, 


RULES  TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  367 

This,  which  is  the  ordinary  form  of  the  rule,  does  not  fully 
express  its  meaning.  The  meaning  is,  that  it  is  not  necessary/ 
to  anticipate  the  answer  of  the  adversary,  which,  according  to 
Hale,  C,  J.,  is  "  like  leaping  before  one  comes  to  the  stile."  ^ 
It  is  sufficient  that  each  pleading  should,  in  itself,  contain  a 
good  prima  facie  case,  without  reference  to  possible  objections 
not  yet  urged. 

Examples :  (1)  In  pleading  a  devise  of  land  by  force  of  the 
statute  of  wills  (32  Hen.  VIII.  c.  1),  it  is  sufficient  to  allege  that 
such  an  one  was  seised  of  the  land  in  fee,  and  devised  it  by  his 
last  will,  in  writing,  without  alleging  that  such  devisor  was  of 
full  age.  For,  though  the  statute  provides  that  wills  made  by 
femes  covert,  or  persons  within  age,  etc.,  shall  not  be  taken  to  be 
effectual,  yet,  if  the  devisor  were  within  age,  it  is  for  the  other 
party  to  show  this  in  his  answer,'*  and  it  need  not  be  denied  by 
anticipation. 

(2)  In  a  declaration  of  debt  upon  a  bond,  it  is  unnecessary  to 
allege  that  the  defendant  was  of  full  age  when  he  executed  it.^ 

(3)  Where  an  action  of  debt  was  brought  upon  the  statute 
21  Henry  VI.,  against  the  bailiff  of  a  town,  for  not  returning  the 
plaintiff,  a  burgess  of  that  town,  for  the  last  Parliament  (the 
words  of  the  statute  being  that  the  sheriff  shall  send  his  precept 
to  the  mayor,  and,  if  there  be  no  mayor,  then  to  the  bailiff),  the 
plaintiff  declared  that  the  sheriff  had  made  his  precept  unto  the 
bailiff,  without  averring  that  there  was  no  mayor.  And,  after 
verdict  for  the  plaintiff,  this  was  moved  in  arrest  of  judgment. 
But  the  court  was  of  opinion,  clearly,  that  the  declaration  was 
good,  "  for  we  shall  not  intend  that  there  was  a  mayor,  except  it 
be  showed  ;  and  if  there  were  one,  it  should  come  more  properly 
on  the  other  side."  * 

(4)  Where  there  was  a  covenant  in  a  charter-party,  "  that  no 
claim  should  be  admitted,  or  allowance  made  for  short  tonnage, 
unless  such  short  tonnage  were  found  and  made  to  appear  on  the 
ship's  arrival,  on  a  survey  to  be  taken  by  four  shipwrights,  to  be 
indifferently  chosen  by  both  parties  ;  "  and,  in  an  action  of  cove- 
nant, brought  to  recover  for  short  tonnage,  the  plaintiff  had  a 
verdict,  the  defendant  moved,  in  arrest  of  judgment,  that  it  had 

1  T.  R.  638  ;  Palmer  v.  Lawson  1  Sid.         2  Stowell  v.  Ld.  Zouch,  Plow.  376. 
333  ;  Lake  v.  Raw,  Carth.  8 ;  Williams         -^  Walsingham's  Case,  ibid.  564.   Sir 

V.  Fowler,  Str.  410.  Ralph  Bovy's  Case,  uhi  supra. 

1  Sir  Ralph  Bovy's   Case,  1  Vent.         ■*  St.  John  v.  St.  John,  Hob.  78. 
217. 


368  COMMON-LAW  PLEADING. 

not  been  averred  in  the  declaration  that  a  survey  was  taken,  and 
short  tonnage  made  to  appear.  But  the  court  held  that,  if  such 
survey  had  not  been  taken,  this  was  matter  of  defence,  which 
ought  to  have  been  shown  by  the  defendants,  and  refused  to  arrest 
the  judgment.^ 

But  where  the  matter  is  such,  that  its  affirmation  or  denial 
is  essential  to  the  ajyparent  or  prima  facie  right  of  the  party 
pleading,  there  it  ought  to  be  affirmed  or  denied  by  him  in 
the  first  instance,  though  it  may  be  such  as  would  otherwise 
properly  form  the  subject  of  objection  on  the  other  side. 

Examj^le :  In  an  action  of  trespass  on  the  case,  brought  by  a 
commoner  against  a  stranger,  for  putting  his  cattle  on  the 
common,  per  quod  communia7n  in  tain  annplo  viodo  habere  non 
potuit  (on  account  of  which  he  could  not  have  common  in  so  full 
a  manner),  the  defendant  pleaded  a  license  from  the  lord  to  put 
his  cattle  there,  but  did  not  aver  that  there  was  sufficient  common 
left  for  the  commoners.  This  was  held,  on  demurrer,  to  be  no 
good  plea,  for,  though  it  may  be  objected  that  the  plaintiff  may 
reply  that  there  was  not  enough  common  left,  yet,  as  he  had 
already  alleged  in  his  declaration  that  his  enjoyment  of  the 
common  was  obstructed,  the  contrary  of  this  ought  to  have  been 
shown  by  the  plea.^ 

Exceptions  :  Pleas  op  Estoppel,  and  of  Alien  Enemy. 

There  is  an  exception  to  the  rule  in  question,  in  the  case  of 
certain  pleas,  which  are  regarded  unfavorably  by  the  courts, 
as  having  the  effect  of  excluding  the  truth.  Such  are  all 
pleadings  in  estoppel^  and  the  plea  of  alien  enemy.  It  is  said 
that  these  must  be  certain  in  every  particular ;  which  seems 
to  amount  to  this,  that  they  must  meet  and  remove,  by  antici- 
pation, every  possible  answer  of  the  adversary. 

Example :  In  a  plea  of  alien  enemy,  the  defendant  must  state 
not  only  that  the  plaintiff  was  born  in  a  foreign  country,  now  at 
enmity  with  the  king,  but  that  he  came  here  without  letters  of 

1  Hotham  V.  East  India  Company,  1  1  Freeman,  190;  Greenhow  v.  Ilsley, 
T.  K.  638.  Willes,  619. 

2  Smith  V.  Feverell,  2  Mod.  6 ;  s.  c.         ^  Co.  Litt.  352  b,  303  a ;   Dovaston 

V.  Payne,  2  H.  Bl.  530. 


RULES   TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  3G9 

safe  conduct  from  the  king;  ^  whereas,  according  to  the  general 
rule  in  question,  such  safe  conduct,  if  granted,  should  be  averred 
by  the  plaintiff  in  reply,  and  need  not,  in  the  first  instance,  be 
denied  by  the  defendant. 

(4)  It  is  not  necessary/  to  allege  circumstances  necessarily 
implied.'^ 

Examples :  (1)  In  an  action  of  debt  on  a  bond,  conditioned  to 
stand  to  and  perform  the  award  of  W.  R.,  the  defendant  pleaded 
that  W.  R.  made  no  award.  The  plaintiff  replied  that,  after  the 
making  of  the  bond,  and  before  the  time  for  making  the  award, 
the  defendant,  by  his  certain  writing,  revoked  the  authority  of 
the  said  W.  R.,  contrary  to  the  form  and  effect  of  the  said  condi- 
tion. Upon  demurrer,  it  was  held  that  this  replication  was  good, 
without  averring  that  W.  R.  had  notice  of  the  revocation,  because 
that  was  implied  in  the  words  "revoked  the  authority;"  for 
there  could  be  no  revocation  without  notice  to  the  arbitrator ;  so 
that,  if  W.  R.  had  no  notice,  it  would  have  been  competent  to  the 
defendant  to  tender  issue  "  that  he  did  not  revoke  in  manner  and 
form  as  alleged."  ^ 

(2)  So,  if  a  feoffment  be  pleaded,  it  is  not  necessary  to  allege 
livery  of  seisin,  for  it  is  implied  in  the  word  "  enfeoffed."  ^ 

(3)  So,  if  a  man  plead  that  he  is  heir  to  A.,  he  need  not  allege 
that  A.  is  dead,  for  it  is  implied.^ 

(5)  It  is  not  necessary  to  allege  what  the  law  will  presume.^ 

Examples :  (1)  In  debt  on  a  replevin  bond,  the  plaintiff's 
declared  that,  at  the  city  of  C,  and  within  the  jurisdiction  of  the 
mayor  of  the  city,  they  distrained  the  goods  of  W.  H.  for  rent, 
and  that  W.  H.,  at  the  said  city,  made  his  plaint  to  the  mayor, 
etc.,  and  prayed  deliverance,  etc.,  whereupon  the  mayor  took 
from  him  and  the  defendant  the  bond  on  which  the  action  was 

1  Casseres  v.  Bell,  8  T.  R.  166.  did  not  put  his  claim  on  the  revocation 

2  Vynior'sCase,  8Co.  Rep.  81  b;  Bac.  of  the  submission,  but  on  an  alleged 
Ab.  Pleas,  &c.  I.  7  ;  Com.  Dig.  Pleader,  non-performance  of  the  award  ;  suck 
E.  9  ;  Co.  Litt.  303  b  ;  2  Saund.  30.5  a^  was  the  judgment  in  Marsh  v.  Bulteel. 
n.  13  ;  Reg.  Plac.  101  ;  Sheers  v.  Brooks,  *  Co.  Litt.  303  b ;  Doct.  PI.  48,  49 ; 
2  H.  Bl.  120;    Handford  v.  Palmer,  2  2  Saund.  ?(6?  s?//)rrt. 

Brod.  &  Bing.  361  ;  Marsh  i-.  Bulteel,  5  ''2  Saund.  tibi  supra  ;  Com.  Dig. 
Bam.  &  Aid.  507.  ubi  supra  ;   Dal.  67. 

^  Vynior's  Case,  ubi  supra;  Marsh         ^  Wilson  v.  Hobday,  4  M.  &  S.  125; 
V.    Bulteel,    ubi     supra,    S.    P. ;     but    Chapman  v.  Pickersgill,  2  Wils.  147. 
judgment     on     the    demurrer    should 
be  for  the  defendant,  for  the  plaintiff 

24 


370  COMMON-LAW  PLEADING. 

brought,  conditioned  that  W.  H.  should  appear  before  the  mayor 
or  his  deputy,  at  the  next  court  of  record  of  the  city,  and  there 
prosecute  his  suit,  etc.,  and  thereupon  the  mayor  replevied,  etc. 
It  was  held  not  to  be  necessary  to  allege  in  this  declaration  a 
custom  for  the  mayor  to  grant  replevin  and  take  bond,  and  show 
that  the  plaint  was  made  in  court,  because  all  these  circumstances 
must  be  presumed  against  the  defendant,  who  executed  the  bond 
and  had  the  benefit  of  the  replevin.^ 

(2)  In  an  action  for  slander,  imputing  theft,  the  plaintiff  need 
not  aver  that  he  is  not  a  thief,  because  the  law  presumes  his 
innocence  till  the  contrary  be  shown.^ 

(6)  A  general  mode  of  pleading  is  allowed  tvhere  great  pro- 
lixity is  thereby  avoided^ 

It  has  been  objected,  with  truth,  that  this  rule  is  indefinite 
in  its  form.*  Its  extent  and  application,  however,  may  be 
collected  with  some  degree  of  precision  from  the  examples  by 
which  it  is  illustrated  in  the  books,  and  by  considering  the 
limitations  which  it  necessarily  receives  from  the  rules  tending 
to  certainty,  as  enumerated  in  a  former  part  of  this  work. 

Examples :  (1)  In  assumpsit,  on  a  promise  by  the  defendant  to 
pay  for  all  such  necessaries  as  his  friend  should  be  provided  with 
by  the  plaintiff,  the  plaintiff  alleged  that  he  provided  necessaries 
amounting  to  such  a  sum.  It  was  moved,  in  arrest  of  judgment, 
that  the  declaration  was  not  good,  because  he  had  not  shown 
what  necessaries  in  particular  he  had  provided.  But  Coke,  C.  J., 
said,  "  this  is  good,  as  is  here  pleaded,  for  avoiding  such  multi- 
plicities of  reckonings  ;  "  and  Doddridge,  J.,  "this  general  allega- 
tion, that  he  had  provided  him  with  all  necessaries,  is  good, 
without  showing  in  particular  what  they  were."  And  the  court 
gave  judgment  unanimously  for  the  plaintiff.^ 

(2)  In  assump)sit  for  labor  and  medicines,  for  curing  the 
defendant  of  a  distemper,  the  defendant  pleaded  infancy.     The 

1  Wilson  V.  Hobday,  4  M.  &  S.  125.  Brownwick,  1  Sid.  334;  Cryps  v.  Bayn- 

3  Chapman   v.   Pickersgill,   2   Wils.  ton,  3  Bulst.  31 ;  Banks  v.  Pratt,  Sty. 

147.  428;  Huggins  i".  Wiseman,  Carth.  110 ; 

^  Co.  Litt.  303  b  ;  2  Saund.  116  b,411,  Groenvelt  v.  Burnell, /fti'c?.  491 ;  J'Auson 

n.  4;  Bac.  Ab.  Pleas,  &c.  I.  3  ;    Jermy  v.  Stuart,  1  T.  R.  753  ;  Shum  i'.  Far- 

??."  Jenny,   1  Ld.  Raym.    8;    Aglionby  rington,  1  Bos.  &  Pull.  640;  Barton  r. 

?•.  Towerson,  ibid.  400  ;  Parkes  v.  Mid-  Webb,  8  T.  R.  459 ;  Hill  v.  Montagu,  2 

dleton,   Lutw.   421 ;    Keating  v.  Irish,  M.  &  S.  378. 

ibid.  590;  Cornwallis  v.  Savery,  2  Burr.  ■*  1  Arch.  211. 

772;    Mints  v.  Bethil,  Cro.  Eliz.  749;  5  Cryps  y.  Baynton,  3  Bulst.  31. 

Braban  v.  Bacon,  ibid.  916;  Church  v. 


RULES   TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  371 

plaintiff  replied  that  the  action  was  brought  for  necessaries  gener- 
ally. On  demurrer  to  the  replication,  it  was  objected,  that  the 
plaintiff  had  not  assigned,  in  certain,  how  or  in  what  manner  the 
medicines  were  necessary ;  but  it  was  adjudged  that  the  replica- 
tion, in  this  general  form,  was  good ;  and  the  plaintiff  had 
judgment.^ 

(3)  In  debt  on  a  bond,  conditioned  that  the  defendant  should 
pay,  from  time  to  time,  the  moiety  of  all  such  money  as  he  should 
receive,  and  give  account  of  it,  he  pleaded,  generally,  that  he  had 
paid  the  moiety  of  all  such  money,  etc.  Et  -per  curiam  (and  by 
the  court),  "  This  plea  of  payment  is  good,  without  showing  the 
particular  sums,  and  that  in  order  to  avoid  stuffing  the  rolls  with 
multiplicity  of  matter."  Also,  they  agreed  that,  if  the  condition 
had  been  to  pay  the  moiety  of  such  money  as  he  should  receive, 
without  saying /rom  time  to  time,  the  payment  should  have  been 
pleaded  specially.^ 

(4)  In  an  action  on  a  bond,  conditioned  that  W.  W. ,  who  was 
appointed  agent  of  a  regiment,  should  pay  all  such  sum  and  sums 
of  money  as  he  should  receive  from  the  paymaster  general  for 
the  use  of  the  regiment,  and  faithfully  account  to  and  indemnify 
the  plaintiff,  the  defendant  pleaded  a  general  performance,  and 
that  the  plaintiff  was  not  damnified.  The  plaintiff  replied,  that 
W.  W.  received  from  the  paymaster  general,  for  the  use  of  the 
said  regiment,  several  sums  of  money,  amounting  in  the  whole  to 
£1,400,  for  and  on  account  of  the  said  regiment  and  of  the  com- 
missioned and  non-commissioned  officers  and  soldiers  of  the  same, 
according  to  their  respective  proportions,  and  that  he  had  not 
paid  a  great  part  thereof  among  the  colonel,  officers,  and  soldiers, 
etc.,  according  to  the  several  proportions  of  their  pay.  Upon 
demurrer,  the  court  said,  that  "  there  was  no  need  to  spin  out  the 
proceedings  to  a  great  prolixity,  by  entering  into  the  detail,  and 
stating  the  various  deductions  out  of  the  whole  pay,  upon  various 
accounts,  and  in  different  proportions."  ^ 

(5)  In  debt  on  bond,  conditioned  that  R.  S.  should  render 
to  the  plaintiff  a  just  account,  and  make  payment  and  delivery 
of  all  moneys,  bills,  etc.,  which  he  should  receive  as  his  agent, 
the  defendant  pleaded  performance.  The  plaintiff  replied,  that 
R.  S.  received,  as  such  agent,  divers  sums  of  money,  amounting 
to  £2,000,  belonging  to  the  plaintiff's  business,  and  had  not  ren- 
dered a  just  account,  nor  made  payment  and  delivery  of  the  said 

^  Huggins  V.  "Wiseman,  Carth.  110.  ^  Cornwallis  v.  Savery,  2  Burr.  772. 

2  Church  r.  Brownwirk,  1  Sid.  3.34  ; 
and  see  Mints  v.  Betliil,  Cro.  Eliz.  749. 


372  COMMON-LAW   PLEADING. 

sum,  or  any  part  thereof.  The  defendant  demurred  specially, 
assigning  for  cause,  that  it  did  not  appear  by  the  replication  from 
whom,  or  in  what  manner,  or  in  what  proportions,  the  said  sums 
of  money,  amounting  to  £2,000,  had  been  received.  But  the 
court  held  the  replication  "  agreeable  to  the  rules  of  law  and 
precedents."  ' 

(7)  A  general  mode  of  pleading  is  often  sufficient^  where  the 
allegation  on  the  other  side  must  reduce  the  matter  to  certainty? 

This  rule  comes  into  most  frequent  illustration  in  pleading 
performance,  in  actions  of  debt  on  bond.  It  has  been  seen  that 
the  general  rule  as  to  certainty  requires  that  the  time,  place, 
and  manner  of  such  performance  should  be  specially  shown. 
Nevertheless,  by  virtue  of  the  rule  now  under  consideration, 
it  may  be  sometimes  alleged  in  general  terms  only ;  and  the 
requisite  certainty  of  issue  is  in  such  cases  secured  by  throw- 
ing on  the  plaintiff  the  necessity  of  showing  a  special  breach 
in  his  replication.  This  course,  for  example,  is  allowed  in 
cases  where  a  more  special  form  of  pleading  would  lead  to 
inconvenient  prolixity. 

Example :  In  debt  on  bond,  conditioned  that  the  defendant 
should  at  all  times,  upon  request,  deliver  to  the  plaintiff  all  the 
fat  and  tallow  of  all  beasts  which  he,  his  servants,  or  assigns, 
should  kill  or  dress  before  such  a  day,  the  defendant  pleaded 
that,  upon  every  request  made  unto  him,  he  delivered  unto  the 
plaintiff  all  the  fat  and  tallow  of  all  beasts  which  were  killed  by 
him,  or  any  of  his  servants  or  assigns,  before  the  said  day.  On 
demurrer,  it  was  objected,  "that  the  plea  was  not  good  in  such 
generality ;  but  he  ought  to  have  said  that  he  had  delivered  so 
much  fat  or  tallow,  which  was  all,  etc. ;  or  that  he  had  killed  so 
many  beasts,  whereof  he  l^d  delivered  all  the  fat."  But  the 
court  held  "  that  the  plea  was  good  ;  for  where  the  matters  to  be 
pleaded  tend  to  infiniteness  and  multiplicity,  whereby  the  rolls 
shall  be  encumbered  with  the  length  thereof,  the  law  allows  of  a 
general  pleading  in  the  affirmative.  And  it  hath  been  resolved, 
by  all  the  justices  of  England,  that  in  debt,  upon  an  obligation 
to  perform  the  covenant  in  an  indenture,  it  sufficeth  to  allege 
performance  generally.     So,  where  one  is  obliged  to  deliver  all 

1  Shum  u.  Farrington,  1  Bos.  &  Pull.  Cro.  Eliz.  749;  1  Sannd.  117,  n.  1  ;  2 
640  ;  and  see  a  similar  decision,  Burton  Saund.  410,  n.  3 ;  Church  r.  Brownwick, 
V.  Webb,  8  T.  R.  459.  1  Sid.  334. 

2  Co.  Litt.  303  b;  Mints  v.  Bethil, 


A 


RULES   TO   PRODUCE   CERTAINTY  IN   THE   ISSUE.  373 

his  evidences,  or  to  assure  all  his  lands,  it  sufficeth  to  allege  that 
he  hath  delivered  all,  etc.,  or  assured  all  his  lands,  and  it 
ought  to  come  on  the  other  side  to  show  the  contrary  in  some 
particular."'!^ 

Another  illustration  is  afforded  by  the  plea  of  non  damnifi- 
catus,  on  an  action  of  debt  on  an  indemnity  bond,  or  bond 
conditioned  "  to  keep  the  plaintiff  harmless  and  indemnified,'^ 
etc.  This  is  in  the  nature  of  a  plea  of  performance,  being  used 
where  the  defendant  means  to  allege  that  the  plaintiff  has 
been  kept  harmless  and  indemnified,  according  to  the  tenor 
of  the  condition ;  and  it  is  pleaded  in  general  terms,  without 
showing  the  particular  manner  of  the  indemnification. 

Example :  If  an  action  of  debt  be  brought  on  a  bond,  conditioned 
that  the  defendant  "  do,  from  time  to  time,  acquit,  discharge,  and 
save  harmless  the  churchwardens  of  the  parish  of  P.,  and  their 
successors,  etc.,  from  all  manner  of  costs  and  charges,  by  reason 
of  the  birth  and  maintenance  of  a  certain  child ;  "  if  the  defend- 
ant means  to  rely  on  the  performance  of  the  condition,  he  may 
plead  in  this  general  form  :  "  That  the  churchwardens  of  the  said 
parish,  or  their  successors,  etc.,  from  the  time  of  making  the  said 
writing  obligatory,  were  not  in  any  manner  damnified  by  reason  of 
the  birth  or  maintenance  of  the  said  child  ;  "  ^  and  it  will  then  be 
for  the  plaintiff  to  show  in  the  replication  how  the  churchwardens 
were  damnified. 

But  with  respect  to  the  plea  of  non  damnificatus,  the  follow- 
ing distinctions  have  been  taken  :  First,  if,  instead  of  plead- 
ing in  that  form,  the  defendant  alleges  affirmatively  that  he 
"  has  saved  harmless,''^  etc.,  the  plea  will  in  this  case  be  bad, 
unless  he  proceeds  to  show  specifically  how  he  saved  harm- 
less.^ Again,  it  is  held  that  if  the  condition  does  not  use  the 
words  "  indemnify,"  or  "  save  harmless,"  or  some  equivalent 
term,  but  stipulates  for  the  performance  of  some  specific  act, 
intended  to  be  by  way  of  indemnity,  such  as  the  payment  of 
a  sum  of  money  by  the  defendant  to  a  third  person,  in  exon- 

1  Mints  V.  Bethil,  Cro.  Eliz.  749  ;  Case,  2  Co.  Rep.  4  a ;  7  Went.  Index, 
and  see  Church  v.  Brownwick,  1  Sid.    615  ;  5  Went.  .5.S1. 

334.  M    Saund.    117,    n.    1;    White    v. 

2  Richard  v.  Hodges,  2  Saund.  84 ;  Cleaver,  Str.  681 ;  Hillier  v.  I'lympton, 
Hayes  v.  Bryant,  1  H.  Bl.  253 ;  Com.    ibid.  422. 

Dig.  Pleader,  E.  25,  2  W.  33  ;  Manser's 


374  COMMON-LAW  PLEADING. 

eration  of  the  plaintiff's  liability  to  pay  the  same  sum,  the  plea 
of  non  damnificatus  will  be  improper  :  and  the  defendant  should 
plead  performance  specifically,  as,"  that  hejjaid  the  said  sum,^^ 
etc.^  It  is  also  laid  down  that,  if  the  condition  of  the  bond 
be  to  "  discharge  "  or  "  acquit  "  the  plaintiff  from  a  particular 
thing,  the  plea  of  non  damnificatus  will  not  apply,  but  the 
defendant  must  plead  performance  specially,  "  that  he  dis- 
charged and  acquitted^^  etc.,  and  must  also  show  the  manner 
of  such  acquittal  and  discharge.^  But,  on  the  other  hand,  if 
a  bond  be  conditioned  to  "  discharge  and  acquit  the  plaintiff 
from  any  damage  "  by  reason  of  a  certain  thing,  non  damnif 
catus  may  then  be  pleaded,  because  that  is,  in  truth,  the  san. 
thing  with  a  condition  to  "  indemnify  and  save  harmless," 
etc.^ 

The  rule  under  consideration  is  also  exemplified  in  the  case 
where  the  condition  of  a  bond  is  for  performance  of  covenants, 
or  other  matters,  contained  in  an  indenture,  or  other  instru- 
ment collateral  to  the  bond,  and  not  set  forth  in  the  condition. 
In  this  case,  also,  the  law  often  allows  (upon  the  same  prin- 
ciple as  in  the  last)  a  general  plea  of  performance,  without 
setting  forth  the  manner.^ 

Examples :  (1)  In  an  action  of  debt  on  bond,  where  the  condi- 
tion is,  that  T,  J.,  deputy  postmaster  of  a  certain  stage,  "  shall  and 
will,  truly,  faithfully,  and  diligently,  do,  execute,  and  perform  all 
and  every  the  duties  belonging  to  the  said  office  of  deputy  post- 
master of  the  said  stage,  and  shall  faithfully,  justly,  and  exactly 
observe,  perform,  fulfill,  and  keep  all  and  every  the  instructions, 
etc.,  from  his  majesty's  postmaster  general,"  and  such  instruc- 
tions are  in  an  affirmative  and  absolute  form,  as  follows :  "  You 
shall  cause  all  letters  and  packets  to  be  speedily  and  without 
delay,  carefully  and  faithfully,  delivered,  that  shall  from  time  to 
time  be  sent  unto  your  said  stage,  to  be  dispersed  there,  or  in  the 
towns  and  parts  adjacent,  that  all  persons  receiving  such  letters  may 
have  time  to  send  their  respective  answers,"  etc.,  it  is  sufficient 
for  the  defendant  to  plead  (after  setting  forth  the  instructions) 

1  Holmes  v.  Rhodes,  1  Bos.  &  Pull.         ^  1  Saund.  uhi  supra. 
638.  *  Mints   v.   Bethil,    Cro.  Eliz.  "49 ; 

^  1  Saund.  117,  n.  1  ;  Bret  v.  Audar,  Bac.  Ab.  Pleas,  &c.  I.  3  ;  2  Saund,  410, 

1  Leon.  71  ;  White  ?;.  Cleaver,  Str.  681 ;  n.  3  ;    1  Saund.  ubi  supra ;   Com.  Dig. 

Leneret  v.  Rivet,  Cro.  Jac.  503 ;  Harris  Pleader,   2,    V.  13 ;    Earl  of  Kerry  v. 

V.  Pett,  5  Mod.  243 ;  8.  c.  Carth.  375.  Baxter,  4  East,  340. 


RULES  TO   PRODUCE  CERTAINTY  IN  THE   ISSUE.  375 

"  that  the  said  T.  J.,  from  the  time  of  the  making  the  said  uniting 
obligatory,  hitherto  hath  well,,  truly ^  faithfully,,  and  diligently 
done,  executed,  and 'performed  all  and  every  tJjfe  duties  belonging 
to  the  said  office  of  deputy  -postmaster  of  the  said  stage,  and  faith- 
fully, justly,  and  exactly  observed,  performed,  fulfilled,  and  kept 
all  and  every  the  instructions,  etc.,  according  to  the  true  intent  and 
meaning  of  the  said  instructions,''^  without  showing  the  manner  of 
performance,  as  that  he  did  cause  certain  letters  or  packets  to  be 
delivered,  etc.,  being  all  that  were  sent.^ 

(2)  If  a  bond  be  conditioned  for  fulfilling  all  and  singular  the 
covenants,  articles,  clauses,  provisos,  conditions,  and  agreements, 
comprised  in  a  certain  indenture,  on  the  part  and  behalf  of  the 
defendant,  which  indenture  contains  covenants  of  an  affirmative 
and  absolute  kind  only,  it  is  sufficient  to  plead  (after  setting  forth 
the  indenture)  that. the  defendant  always  hitherto  hath  well  and 
truly  fulfilled  all  And  singular  the  covenants,  articles,  clauses, 
provisos,  conditions,  and  agreements  comprised  in  the  said  inden- 
ture, on  the  part  and  behalf  of  the  said  defendant.'^ 

But  the  adoption  of  a  mode  of  pleading  so  general  as  in 
these  examples  will  be  improper,  where  the  covenants,  or 
other  matters  mentioned  in  the  collateral  instrument,  are 
either  in  the  negative  or  the  disjunctive  form  ;  ^  and,  with 
respect  to  such  matters,  the  allegation  of  performance  should 
be  more  specially  made,  so  as  to  apply  exactly  to  the  tenor  of 
the  collateral  instrument. 

Example :  In  the  example  above  given,  of  a  bond  conditioned 
for  the  performance  of  the  duties  of  a  deputy  postmaster,  and 
for  observing  the  instructions  of  the  postmaster  general,  if,  be- 
sides those  in  the  positive  form,  some  of  these  instructions  were 
in  the  negative,  as,  for  example,  "  you  shall  not  receive  any  letters 
or  packets  directed  to  any  seaman,  or  unto  any  private  soldier, 
etc.,  unless  you  be  first  paid  for  the  same,  and  do  charge  the  same 
to  your  account  as  paid,"  it  would  be  improper  to  plead  merely 
that  T.  J.  faithfully  performed  the  duties  belonging  to  the  office, 
etc.,  and  all  and  every  the  instructions,  etc.  Such  plea  will  apply 
sufficiently  to  the  positive,  but  not  to  the  negative  part  of  the 
instructions.*     The  form,  therefore,  should  be  as  follows :  "  That 

^  2  Saand.  40.3  b,  410,  n.  3.  supra;    Of^lethorp  v.  Hyde,  Cro.  Eliz. 

2  Gainsford  v.  Griffith,  1  Saund   55,  23.3  ;    Lord   Arlington   v.   Merricke,   2 

117,  n.  1  ;  Earl  of  Kerry  v.  Baxter,  4  Saund.  410,  and  n.  3,  ibid. 

East,  340.  *  Lord    Arlington  v.  Merricke,   ubi 

*  Earl    of    Kerry    v.    Baxter,    ubi  supra. 


376  COMMON-LAW   PLEADING. 

the  said  T.  J.,  from  the  time  of  making  the  said  writing  obligatory, 
hitherto  hath  well,  truly,  faithfully,  and  diligently  executed  and 
l^erformed  all  and  every  the  duties  belonging  to  the  said  offi,ce  of 
deimty  postmaster  of  the  said  stage,  and  faithfully,  justly,  and 
exactly  observed,  performed,  fulfilled,  and  kept  all  and  every  the 
instructions,  etc.,  according  to  the  true  intent  and  meaning  of  the 
said  instructions.  And  the  said  defendant  further  says,  that 
the  said  T.  J.,  from  the  time  aforesaid,  did  not  receive  any  letters 
or  packets  directed  to  any  seaman,  or  private  soldier,  etc.,  unless 
he,  the  said  T.  J.,  was  first  paid  for  the  same,  and  did  so  charge 
himself,  in  his  account,  with  the  same  as  2>aid,"  etc.^ 

And  the  case  is  the  same  where  the  matters  mentioned  in 
the  collateral  instrument  are  in  the  disjunctive  or  alternative 
form ;  as,  where  the  defendant  engages  to  do  either  one  thing 
or  another.  Here,  also,  a  general  allegation  of  performance  is 
insufficient ;  and  he  should  show  which  of  the  alternative  acts 
was  performed.^ 

The  reasons  why  the  general  allegation  of  performance  does 
not  properly  apply  to  negative  or  disjunctive  matters  are, 
that,  in  the  first  case,  the  plea  would  be  indirect  or  argumen- 
tative in  its  form ;  in  the  second,  equivocal ;  and  would,  in 
either  case,  therefore,  be  objectionable,  by  reason  of  certain 
rules  of  pleading,  which  we  shall  have  occasion  to  consider 
in  the  next  section. 

It  has  been  stated  in  a  former  part  of  this  work  that  where 
a  party  founds  his  answer  upon  any  matter  not  set  forth  by  his 
adversary,  but  contained  in  a  deed,  of  which  the  latter  makes 
profert,  he  must  demand  oyer  of  such  deed,  and  set  it  forth. 
In  pleading  performance,  therefore,  of  the  condition  of  a  bond, 
where  (as  is  generally  the  case)  the  plaintiff  has  stated  in  his 
declaration  nothing  but  the  bond  itself,  without  the  condition, 
it  is  necessary  for  the  defendant  to  demand  oyer  of  the  con- 
dition, and  set  it  forth.^  And  in  pleading  performance  of 
matters  contained  in  a  collateral  instrument.,  it  is  necessary  not 
only  to  do  this,  hut  also  to  make  profert.,  and  set  forth  the 
whole'  substance  of  the  collateral  instrument,^  iov  otherwise  it 
will  not  appear  that  that  instrument  did  not  stipulate  for  the 

1  2  Saund.  410,  and  n.  3  ibid.  3  2  Sauud.  410,  n.  2. 

2  Oglethorp  v.  Hyde,  Cro.  Eliz.  233.  *  Ibid. 


RULES   TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  377 

performance  of  negative  or  disjunctive  matters,^  and,  in  that 
case,  the  general  plea  of  performance  of  the  matters  therein 
contained  would  (as  above  shown)  be  improper. 

(8)  No  greater  particularity  is  required  than  the  nature  of 
the  thing  pleaded  will  conveniently  admit? 

Thus,  though  generally,  in  an  action  for  injury  to  goods, 
the  quantity  of  the  goods  must  be  stated,  yet,  if  they  can  not, 
under  the  circumstances  of  the  case,  be  conveniently  ascer- 
tained by  number,  weight,  or  measure,  such  certainty  will  not 
be  required. 

Examples :  (1)  In  trespass  for  breaking  the  plaintiff's  close, 
with  beasts,  and  eating  his  peas,  a  declaration,  not  showing  the 
quantity  of  peas,  has  been  held  suflacient;  "because  nobody  can 
measure  the  peas  that  beasts  can  eat."  ^ 

(2)  In  an  action  on  the  case  for  setting  a  house  on  fire,  per 
quod  the  plaintiff,  amongst  divers  other  goods,  ornatus  pro  eqids 
amisit  (provisions  for  his  horses  lost),  after  verdict  for  the 
plaintiff,  it  was  objected,  that  this  was  uncertain ;  but  the  objec- 
tion was  disallowed  by  the  court.  And,  in  this  case,  Windham, 
J.,  said,  that  if  he  had  mentioned  only  diversa  bona  (sundry 
goods),  yet  it  had  been  well  enough,  as  a  man  can  not  be  supposed 
to  know  the  certainty  of  his  goods  when  his  house  is  burnt ;  and 
added,  that,  to  avoid  prolixity,  the  law  will  sometimes  allow  such 
a  declaration.* 

(3)  In  an  action  of  debt  brought  on  the  statute  23  Hen.  VI. 
c.  15,  against  the  sheriff  of  Anglesea,  for  not  returning  the 
plaintiff  to  be  a  knight  of  the  shire  in  Parliament,  the  declaration 
alleged  that  the  plaintiff  "  was  chosen  and  nominated  a  knight  of 
the  same  county,  etc.,  by  the  greater  number  of  men  then  resi- 
dent within  the  said  county  of  Anglesea,  present,  etc.,  each  of 
whom  could  dispend  40s.  of  freehold  by  the  year,"  etc.  On  de- 
murrer, it  was  objected  that  the  plaintiff  "  does  not  show  the  cer- 
tainty of  the  number  ;  as  to  say,  that  he  was  chosen  by  200,  which 
was  the  greater  number;  and  thereupon,  a  certain  issue  might 
arise,  whether  he  was  elected  by  so  many,  or  not."  But  it  was 
held  that  the  declaration  was  "  good  enough,  without  showing 

1  See  Earl  of  Kerry  v.  Baxter,  4  Partridge  v.  Strange,  ibid.  S.') ;  Hartley 
East,  340.  V.  Herring,  8  T.  R.  130. 

2  Bac.  Ab.  Pleas,  &c.  (B.  5)  5,  and         ^  Bac.  Ab.  uhi  supra. 

409,  5th  ert. ;  Buckley  v  Rice  Thomas,  *  Bac.  Ab.  Pleas,  &c.  409,  5th  ed. 

Plow.  118;  Wimbish  v.  Tailbois,  ibid.  54 ; 


378  COMMON-LAW   PLEADING. 

the  number  of  electors  ;  for  the  e/ection  might  be  made  by  voices, 
or  by  hands,  or  such  other  way,  wherein  it  is  easy  to  tell  who  has 
the  majority,  and  yet  very  diificult  to  know  the  certain  number 
of  them."  And  it  was  laid  down  that,  to  put  the  plaintiff  "  to 
declare  a  certainty,  where  he  can  not,  by  any  possibility,  be  pre- 
sumed to  know  or  remember  the  certainty,  is  not  reasonable  nor 
requisite  in  our  law."  ^ 

(4)  In  an  action  for  false  imprisonment,  where  the  plaintiff 
declared  that  the  defendant  imprisoned  him  until  he  made  a  cer- 
tain bond,  by  duress,  to  the  defendant,  "  and  others  unknown," 
the  declaration  was  adjudged  to  be  good,  without  showing  the 
names  of  the  others ;  "  because  it  might  be  that  he  could  not 
know  their  names  ;  in  which  case,  the  law  will  not  force  him  to 
show  that  which  he  can  not."  "^ 

(9)  iess  particularity  is  required,  when  the  facts  lie  more  in 
the  knoivledge  of  the  opi^osite  party ,  than  of  the  party  pie adiny.^ 

This  rule  is  exemplified  in  the  case  of  alleging  title  in  an 
adversary,  where  (as  formerly  explained)  a  more  general 
statement  is  allowed,  than  when  title  is  set  up  in  the  party 
himself. 

Examples :  (1)  In  an  action  of  covenant,  the  plaintiff  declared 
that  the  defendant,  by  indenture,  demised  to  him  certain  prem- 
ises, with  a  covenant  that  he,  the  defendant,  had  full  power  and 
lawful  authority  to  demise  the  same,  according  to  the  form  and 
effect  of  the  said  indenture  ;  and  then  the  plaintiff  assigned 
a  breach,  that  the  defendant  had  not  full  power  and  lawful 
authority  to  demise  the  said  premises,  according  to  the  form  and 
effect  of  the  said  indenture.  After  verdict  for  the  plaintiff,  it 
was  assigned  for  error,  that  he  had  not  in  his  declaration  shown, 
"  what  person  had  right,  title,  estate,  or  interest,  in  the  lands 
demised,  by  which  it  might  appear  to  the  court  that  the  defendant 
had  not  full  power  and  lawful  authority  to  demise."  But,  "upon 
conference  and  debate  amongst  the  justices,  it  was  resolved  that 
the  assignment  of  the  breach  of  covenant  was  good;  for  he  has 
followed  the  words  of  the  covenant  negatively,  and  it  lies  more 
properly  in  the  knowledge  of  the  lessor,  what  estate  he  himself 

1 -Buckley  r.  Rice  Thomas,  Plow.  118.  ney    General    i-.    MeUer,    Hard.   459; 

2  Cited  ihid.  See  also  Wimbish  v.  Denham  r.  Stephenson,  ]  Salk.  3.55 ; 
Tailbois,  Plow.  54,  55 ;  Partridge  v.  Robert  Bradshaw's  Case,  9  Co.  Rep. 
Strange,  Plow.  85.  60  b  ;  Gale  v.  Read,  8  East,  80 ;  Com 

3  Rider    v.    Smith,    3    T.   R.    766 ;  Dig  Pleader,  C.  26. 
Derisley  y.  Custance,  4  T.  R.  77  ;  Attor- 


RULES   TO   PRODUCE   CERTAINTY   IN   THE   ISSUE.  379 

has  in  the  land  which  he  demises,  than  the  lessee,  who  is  a 
stranger  to  it."  ^ 

(2)  Where  the  defendant  had  covenanted  that  he  would  not 
carry  on  the  business  of  a  rope-maker,  or  ma.ke  cordage  for 
any  person,  except  under  contracts  for  government,  and  the 
plaintiff,  in  an  action  of  covenant,  assigned  for  breach,  that  after 
the  making  of  the  indenture,  the  defendant  carried  on  the  busi- 
ness of  a  rope-maker,  and  made  cordage  for  divers  and  very  many 
persons,  other  than  by  virtue  of  any  contract  for  government,  etc. ; 
the  defendant  demurred  specially,  on  the  ground  that  the  plaintiff 
"had  not  disclosed  any  and  what  particular  person  or  persons  for 
whom  the  defendant  made  cordage,  nor  any  and  what  particular 
quantities  or  kinds  of  cordage  the  defendant  did  so  make  for 
them,  nor  in  what  manner,  nor  by  what  acts,  he  carried  on  the 
said  business  of  a  rope-maker,  as  is  alleged  in  the  said  breach  of 
covenant."  But  the  court  held,  "that  as  the  facts  alleged  in 
these  breaches  lie  more  properly  in  the  knowledge  of  the  defend- 
ant, who  must  be  presumed  cognizant  of  his  own  dealings,  than 
of  the  plaintiff,  there  was  no  occasion  to  state  them  with  more 
particularity;  "  and  gave  judgment  accordingly.^ 

(10)  Less  particularity  is  necessary  in  the  statement  of  matter 
of  inducement,  or  aggravation,  than  hi  the  main  allegations? 

This  rule  is  exemplified  in  the  case  of  the  derivation  of 
title  ;  where,  though  it  is  a  general  rule  that  the  commence- 
ment of  a  particular  estate  must  he  shown,  yet  an  exception  is 
allowed,  if  the  title  be  alleged  by  way  of  i^iducement  only. 

Examples :  (1)  Where,  in  assumpsit,  the  plaintiff  declared  that, 
in  consideration  that,  at  the  defendant's  request,  he  had  given 
and  granted  to  him,  by  deed,  the  next  avoidance  of  a  certain 
church,  the  defendant  promised  to  pay  £100,  but  the  declaration 
did  not  set  forth  any  time  or  place  at  which  such  grant  was 
made;  upon  this  being  objected,  in  arrest  of  judgment,  after 
verdict,  the  court  resolved,  that  "it  was  but  an  inducement  to  the 
action,  and  therefore  needed  not  to  be  so  precisely  alleged;"  and 
gave  judgment  for  the  plaintiff.* 

1  Robert  Bradshaw's  Case,  9  Co.  Rep.  12  Mod.  597  ;  Chamberlaiu  v.  Greenfield, 
60  b.  3  Wils.  292  ;  Alsope  v.  Sytwell,  Yelv. 

2  Gale  V.  Read,  8  East,  80.  17;    Riggs   v.   Bulliugham,  Cro.  Eliz. 
8  Co.  Litt.  303  a;   Bac.  Ab.  Pleas,     715;    Woolaston    v.    We!)h,    Ilob.    18; 

&c.    322,    348,    5th    ed. ;    Com.    Dig.     Bishop    of     Salisbury's    Case,    10   Co. 
Pleader,  C.  31,  C.  43,  E.   10,  E.  18;     Rep.  59  b ;  1  Saund.  274,  n.  1. 
Doct.  PI.  283;  Wetherell  v.  Clerkson,  *  Riggs  i;.BuUingham,  ubi  supra. 


380  COMMON-LAW   PLEADING. 

(2)  In  trespass,  the  plaintiff  declared  that  the  defendant 
broke  and  entered  his  dwelling-house,  and  "  wrenched  and  forced 
open,  or  caused  to  be  wrenched  and  forced  open,  the  closet-doors, 
drawers,  chests,  cupboards,  and  cabinets  of  the  said  plaintiff," 
Upon  special  demurrer,  it  was  objected,  that  the  number  of 
closet-doors,  drawers,  chests,  cupboards,  and  cabinets,  was  not 
specified.  But  it  was  answered,  "that  the  breaking  and  enter- 
ing the  plaintiff's  house  was  the  principal  ground  and  foundation 
of  the  present  action;  and  all  the  rest  are  not  foundations  of 
the  action,  but  matters  only  thrown  in  to  aggravate  the  damages ; 
and  on  that  ground  need  not  be  particularly  specified."  And  of 
that  opinion  was  the  whole  court ;  and  judgment  was  given  for 
the  plaintiff.-^ 

(11)  With  respect  to  acts  valid  at  common  law,  but  regulated, 
as  to  the  mode  of  performance,  by  statute,  it  is  sufficient  to  use 
such  certainty  of  allegation,  as  was  sufficient  before  the  statute? 

By  the  common  law,  a  lease  for  any  number  of  years  might 
be  made  by  parol  only ;  but,  by  the  statute  of  frauds  (29  Car. 
II.  c.  3,  s.  1,  2),  all  leases  and  terms  for  years  made  by  parol, 
and  not  put  into  writing,  and  signed  by  the  lessors  or  their 
agents  authorized  by  writing,  shall  have  only  the  effect  of 
leases  at  will,  except  leases  not  exceeding  the  term  of  three 
years  from  the  making.  Yet  in  a  declaration  of  debt  for  rent 
on  a  demise,  it  is  sufficient  (as  it  was  at  common  law)  to  state 
a  demise  for  any  number  of  years,  without  showing  it  to  have 
been  in  writing.^  So,  in  the  case  of  a  promise  to  answer  for 
the  debt,  default,  or  miscarriage  of  another  person  (which  was 
good  by  parol,  at  common  law,  but  by  the  statute  of  frauds, 
section  4,  is  not  valid  unless  the  agreement,  or  some  memo- 
randum or  note  thereof,  be  in  writing,  and  signed  by  the 
party,  etc.),  the  declaration,  on  such  promise,  need  not  allege 
a  written  contract.* 

And  on  this  subject,  the  following  difference  is  to  be 
remarked,  that  "  where  a  thing  is  originally  made  by  act 
of   Parliament,  and   required   to   be   in  writing,  it  must  be 

1  Chamberlain  v.  Greenfield,  3  Wils.  12  Mofl.  540;  Bac.  Ab.  Statute,  L.  3; 
292.  4  Hen.  VII.  8. 

2  1    Saund.    276,   n.   2;    211,    n.    2;  s  i  Saund.  276,  n.  1. 

Anon.  2  Salk.  519;  Birch  v.  Bellamy,         *  1  Saund.  211,  n.  2 ;  Anon.  2  Salk. 

519. 


RULES  TO   PRODUCE   CERTAINTY  IN   THE   ISSUE.  381 

pleaded  with  all  the  circumstances  required  by  the  act ;  as  in 
the  case  of  a  will  of  lands,  it  must  be  alleged  to  have  been 
made  in  writing ;  but  where  an  act  makes  writing  necessary 
to  a  matter,  where  it  was  not  so  at  the  common  law,  as  where 
a  lease  for  a  longer  term  than  three  years  is  required  to  be  in 
writing  by  the  statute  of  frauds,  it  is  not  necessary  to  plead 
the  thing  to  be  in  writing,  though  it  must  be  proved  to  be  so, 
in  evidence."  ^ 

Distinction  :  As  to  the  rule  under  consideration,  however, 
a  distinction  has  been  taken  between  a  declaration  and  a  plea  ; 
and  it  is  said,  that  though  in  the  former  the  plaintiff  need 
not  show  the  thing  to  be  in  writing,  in  the  latter  the  defendant 
must. 

Example :  In  an  action  of  indebitatus  assumpsit,  for  necessaries 
provided  for  the  defendant's  wife,  the  defendant  pleaded,  that 
before  the  action  was  brought,  the  plaintiff  and  defendant,  and 
one  J.  B.,  the  defendant's  son,  entered  into  a  certain  agreement, 
by  which  the  plaintiff,  in  discharge  of  the  debt  mentioned  in  the 
declaration,  was  to  accept  the  said  J.  B.  as  her  debtor  for  £9,  to 
be  paid  when  he  should  receive  his  pay  as  a  lieutenant ;  and  that 
the  plaintiff  accepted  the  said  J.  B.  for  her  debtor,  etc.  Upon 
demurrer,  judgment  was  given  for  the  plaintiff,  for  two  reasons : 
first,  because  it  did  not  appear  that  there  was  any  consideration 
for  the  agreement ;  secondly,  that,  admitting  the  agreement  to  be 
valid,  yet,  by  the  statute  of  frauds,  it  ought  to  be  in  writing,  or 
else  the  plaintiff  could  have  no  remedy  thereon ;  "  and  though, 
upon  such  an  agreement,  the  plaintiff  need  not  set  forth  the 
agreement  to  be  in  writing,  yet  when  the  defendant  pleads  such 
an  agreement  in  bar,  he  must  plead  it  so  as  it  may  appear  to  the 
court  that  an  action  will  lie  upon  it ;  for  he  shall  not  take  away 
the  plaintiff's  present  action,  and  not  give  her  another,  upon  the 
agreement  pleaded."  ^ 

1  1  Sannd.  276,  d,  e,  n.  2.  the  first  objection.   The  case  is,  perhaps, 

2  Case  V.  Barber,  1  Ld.  Raym.  450.  therefore,  not  decisive  as  to  the  validity 
It  is  to  be  observed,  that  the  plea  was    of  the  second. 

at  all  events  a  bad  one  with  respect  to 


CHAPTEE    XIII. 

OF    RULES   WHICH   TEND  TO    PREVENT  OBSCURITY  AND 
CONFUSION  IN  PLEADING. 

Rule  I.    Pleadings  must  not  be  insensible  nor  repugnant.^ 

(1)  If  a  pleading  be  unintelligible  (or,  in  the  language  of 
pleading,  insensible),  by  the  omission  of  material  words,  etc., 
this  vitiates  the  pleading.^ 

(2)  If  a  pleading  be  inconsistent  with  itself,  or  repugnant, 
this  is  ground  for  demurrer. 

Examples :  (1)  "Where,  in  an  action  of  trespass,  the  plaintiff 
declared  for  taking  and  carrying  away  certain  timber,  lying  in  a 
certain  place,  for  the  completion  of  a  house  then  lately  built,  — 
this  declaration  was  considered  as  bad  for  repugnancy ;  for  the 
timber  could  not  be  for  the  building  of  a  house  already  built.* 

(2)  Where  the  defendant  pleaded  a  grant  of  a  rent,  out  of  a 
term  of  years,  and  proceeded  to  allege  that,  by  virtue  thereof,  he 
was  seised  in  his  demesne,  as  of  freehold,  for  the  term  of  his  life, 
the  plea  was  held  bad  for  repugnancy.* 

Exception. 

If  the  second  allegation,  which  creates  the  repugnancy,  is 
merely  superfluous  and  redundant,  so  that  it  may  be  rejected 
from  the  pleading,  without  materially  altering  the  general 
sense  and  effect,  it  shall,  in  that  case,  be  rejected,  at  least,  if 
laid  under  a  videlicet,  and  shall  not  vitiate  the  pleading ;  for 
the  maxim  is,  utile,  per  inutile,  non  vitiatur.^ 

1  Com.  Dig.  Pleader,  C.  23  ;  Wyat  3  Xevill  v.  Soper,  uhi  supra, 

r.  Aland,  1  Salk.  324  ;  Bac.  Ah.  Pleas,  ^  Butt's  Case,  ubi  supra. 

&c.  I.  4;  Nevill  v.  Soper,  1  Salk.  213;  5  Gilb.  C.  P.  131,  132  ;  The  King  v. 

Butt's  Case,  7  Co.  Rep.  a ;  Hutchinson  Stevens,  5  East,  255 ;   Wyat  v.  Aland, 

!■. .Jackson,  2 Lut.  1324 ;  Vin.  Ab.  Abate-  ubi  supra;   2    Saund.   291,   n.    1,306, 

ment,  D.  a.  n.  14 ;  Co.  Litt.  303  b. 

-  Com.   Dig.    ubi   supra;    Wyat    v. 
Aland,  ubi  supra. 


TO    PREVENT   OBSCURITY   AND    CONFUSION    IN    PLEADING.       383 

Rule  II.     Pleadings  must  not  be  ambiguous,  or  doubtful,  /  j  J 
IN  Meaning  ;   and  when  two  Different  Meanings  present  ^ 
themselves,  that  Construction  shall  be  adopted  which 
is  most  unfavorable  to  the  Party  pleading.^ 

Examples:  (1)  If  in  trespass  quare  clausum  f regit,  the  defend- 
ant pleads,  that  the  Locus  in  quo  was  his  freehold,  he  must  allege 
that  it  was  his  freehold  at  the  time  of  the  trespass ;  otherwise 
the  plea  is  insufficient.^ 

(2)  In  debt  on  a  bond,  conditioned  to  make  assurance  of 
laud,  if  the  defendant  pleads  that  he  executed  a  release,  his 
plea  is  bad,  if  it  does  not  express  that  the  release  concerns  the 
same  land.'^ 

(3)  In  trespass  quare  clausum,  fregit,  and  for  breaking  down 
two  gates  and  three  perches  of  hedges,  the  defendant  pleaded  that 
the  said  close  was  within  the  parish  of  K.,  and  that  all  the 
parishioners  there,  from  time  immemorial,  had  used  to  go  over 
the  said  close,  upon  their  p>erambulation  in  rogation  week ;  and 
because  the  plaintiff  had  wrongfully  erected  two  gates  and  three 
perches  of  hedges,  in  the  said  way,  the  defendant,  being  one  of  the 
parishioners,  broke  down  those  gates  and  those  three  perches  of 
hedges.  On  demurrer,  it  was  objected,  that  though  the  defendant 
had  justified  the  breaking  down  two  gates  and  three  perches  of 
hedges,  it  does  not  appear  that  they  were  the  same  gates  and 
hedges,  in  respect  of  which  the  plaintiff  complained ;  it  not  being 
alleged  that  they  were  the  gates  and  hedges  "  aforesaid,'^  or  the 
gates  and  hedges  "m  the  declaration  mentioned^  "And  thereto 
agreed  all  the  justices,  that  this  fault  in  the  bar  was  incurable. 
For  Walmsley  said,  that  he  thereby  doth  not  answer  to  that  for 
which  the  plaintiff  chargeth  him."  And  he  observed,  that  the 
case  might  be,  that  the  plaintiff  had  erected  four  gates  and  six 
perches  of  hedges  ;  and  that  the  defendant  had  broken  down  the 
whole  of  these,  having  the  justification  mentioned  in  the  plea,  in 
respect  of  two  gates  and  three  perches  only,  and  no  defence  as  to 
the  remainder ;  and  that  the  action  might  be  brought  in  respect 
of  the  latter  only.* 

A  pleading,  however,  is  not  objectionable,  as  ambiguous  or 
obscure,  if  it  be  certain  to  a  common  intent ;  ^  that  is,  if  it  be 

1  Co.  Litt.  303  b  ;  Purcell  v.  Bradley,  2  Com.  Di^.  Pleader,  E.  5. 


Yelv.  36  ;  Rose  v.  Standen,  2  Mod.  29.5 
Dovaston  v.  Payne,  2  H.  Bl.  .530 
Thornton   v.   Adams,  5   M.   &   S.  38 


^  Com.    Dig.    nhi  supra ;    Manser's 
Case,  2  Co.  Rep.  3. 

4  Goodday  v.  Michell,  Cro.  Eliz.  441. 


Lord  Huntingtower  y.  Gardiner,  1  Barn.  ^  Com.  Dig.  Pleader,   E.   7,  F.   17: 

&  Cress.   297  ;   Fletcher  v.  Pogson,  3     I  Saund.  49,  n.  1 ;  Long's  Case,  5   Co. 
Bam.  &  Cress.  192.  Rep.  121  a;  Doct.  PI.  58  ;  Colthirst  v. 


384  COMMON-LAW   PLEADING. 

clear  enough,  according  to  reasonable  intendment  or  construc- 
tion, though  not  worded  with  absolute  precision.^ 

Examples :  (1)  In  debt  on  a  bond,  conditioned  to  procure  A.  S. 
to  surrender  a  copyhold  to  the  use  of  the  plaintiff,  —  a  plea  that 
A.  S.  surrendered  and  released  the  copyhold  to  the  plaintiff, 
in  full  court,  and  the  plaintiff  accepted  it,  without  alleging  that 
the  surrender  was  to  the  plaintiff's  use,  is  sufficient ;  for  this  shall 
be  intended. '^ 

(2)  In  debt  on  a  bond,  conditioned  that  the  plaintiff  shall 
enjoy  certain  land,  etc.,  —  a  plea  that  after  the  making  of  the  bond, 
until  the  day  of  exhibiting  the  bill,  the  plaintiff  did  enjoy,  is 
good,  though  it  be  not  said,  that  always  after  the  making,  until, 
etc.,  he  enjoyed ;  for  this  shall  be  intended.' 

Negative  Pregnant. 

It  is  under  this  head,  of  ambiguity,  that  the  doctrine  of 
negatives  pregnant  appears  most  properly  to  range  itself. 
A  negative  pregnant  is  such  a  form  of  negative  expression 
as  may  imply,  or  carry  within  it,  an  affirmative.  This  is 
considered  as  a  fault  in  pleading ;  and  the  reason  why  it  is  so 
considered,  is,  that  the  meaning  of  such  a  form  of  expression 
is  ambiguous. 

Examples :  (1)  In  trespass,  for  entering  the  plaintiflPs  house, 
the  defendant  pleaded,  that  the  plaintiff's  daughter  gave  him 
license  to  do  so ;  and  that  he  entered  by  that  license.  The  plain- 
tiff replied,  that  he  did  not  enter  by  her  license.  This  was  con- 
sidered as  a  negative  pregnant ;  and  it  was  held,  that  the  plain- 
tiff should  have  traversed  the  entry  by  itself,  or  the  license  by 
itself,  and  not  both  together.*  It  will  be  observed  that  this  form 
of  traverse  may  imply,  or  carry  within  it,  that  a  license  was  given, 
though  the  defendant  did  not  enter  by  that  license.  It  is,  there- 
fore, in  the  language  of  pleading,  said  to  be  pregnant  with  that 
admission,  viz.,  that  a  license  was  given.^    At  the  same  time,  the 

Bejushin,  Plow.  26,  28,  33  ;  Fulmerston  "  certain  "  is  here  used,  not  in  the  sense 

V.  Steward,  ibid.  102;  Cooper  r.  Mouke,  of  particular  or  specific,  as   in   former 

Willes,  52 ;  The  Iving  v.  Lyme  Regis,  parts  of  this  work,  —  but   in  its  other 

1    Doug.  158;    Hamond  v.   Dod,    Cro.  meaning,  of  c/ear  or  rf/.s^ncf. 
Car.  5  ;  Poynter  v.  Poynter,  ibid.  194  ;  ^  Hamond  i\  Dod,  Cro.  Car.  6. 

Dovaston  y.  Payne,  2  H.  Bl.  530 ;  Jacobs  »  Harlow  v.  Wright,  ibid.  105. 

V.  Nelson,  3  Taunt.  423.     See  especially         •»  Myn  v.  Cole,  Cro.  Jac.  87. 
Chit.  PL  212-218.  ^  Bac.  Ab.  Pleas,  &c.  420,  5th  ed. 

1  It  will  be  observed,  that  the  word 


TO   PREVENT   OBSCURITY   AND   CONFUSION   IN   PLEADING.      385 

license  is  not  expressly  admitted ;  and  the  effect,  therefore,  is  to 
leave  it  in  doubt  whether  the  plaintiff  means  to  deny  the  license 
or  to  deny  that  the  defendant  entered  by  virtue  of  that  license. 
It  is  this  ambiguity  which  appears  to  constitute  the  fault.^  J 

(2)  In  an  action  for  negligently  keeping  a  fire,  by  which  the  ' 
plaintiff's  houses  were  burned,  the  defendant  pleaded  that  the 
plaintijfs  Iwuses  were  not  burned  by  the  defendant'' s  negligence  in 
keejr'mg  his  fire ;  and  it  was  objected  that  the  traverse  was  not 
good,  for  it  has  two  intendments  :  one  that  the  houses  were  not 
burned  ;  the  other  that  they  were  burned,  but  not  by  negligent 
keeping  of  the  fire;  and  so  it  is  a  negative  pregnant  (28  Hen. 
VI.  7). 

(3)  In  trespass,  for  assault  and  battery,  the  defendant  justified, 
for  that  he,  being  master  of  a  ship,  commanded  the  jjlaintiff  to 
do  some  service  in  the  ship ;  which  he  refusing  to  do,  the  defend- 
ant moderately  chastised  him.  The  plaintiff  traversed,  with  an 
absque  hoc,  that  the  defendant  moderately  chastised  him  ;  and  this 
traverse  was  held  to  be  a  negative  pregnant ;  —  for,  while  it 
apparently  means  to  put  in  issue  only  the  question  of  excess  (ad- 
mitting, by  implication,  the  chastisement),  it  does  not  necessarily 
and  distinctly  make  that  admission ;  and  is,  therefore,  ambiguous 
in  its  form.*^ 

If  the  plaintiff  had  replied  that  the  defendant  immoderately 
chastised  him,  the  objection  would  have  been  avoided  ;  but  the 
proper  form  of  traverse  would  have  been  de  injuria  sua  projjria 
absque  tali  causa.^  This,  by  traversing  the  whole  "  cause 
alleged,"  would  have  distinctly  put  in  issue  all  the  facts  in 
the  plea ;  and  no  ambiguity  or  doubt,  as  to  the  extent  of  the 
denial,  would- have  arisen.* 

This  rule,  however,  against  a  negative  pregnant,  appears  in 
modern  times,  at  least,  to  have  received  no  very  strict  con- 
struction. For  many  cases  have  occurred  in  which,  upon 
various  grounds  of  distinction  from  the  general  rule,  that 
form  of  expression  has  been  held  free  from  objection.^ 

1  28  Hen.  VI.  7  ;  Slade  v.  Drake,  has  been  over-ruled  by  the  hxter  case  of 
Hob.  295 ;  Styles'  Pract.  Reg.  tit.  Penn  v.  Ward,  2  Cromp.  M.  &  K.  .3.-58. 
Negative  Pregnant.  The   moderation   of    the    chastisement 

2  Anberie  v.  James,  Vent.  70;  s.  c.  can  not  be  put  in  issue  I)y  the  traverse 
1  Sid.  444;  2  Keb.  62.3.  dp,    injuria;    for   this    purpose   a   uew 

"  Auberie  v.  .James,  nU  supra.  assignment  of  the  e.rccs.s  of  chastisement 

*  Since  Mr.  Stephen  published  this     is  required, 
edition,  the   case  of  Auberie  v.  James         ^  Com.  Dig.  Pleader,  R.  6. 

25 


386  COMMON-LAW  PLEADING. 

Example :  lu  debt  on  a  bond,  conditioned  to  perform  the  cov- 
enants in  an  indenture  of  lease,  one  of  which  covenants  was 
that  the  defendant,  the  lessee,  would  not  deliver  possession  to 
any  but  the  lessor,  or  such  persons  as  should  lawfully  evict  him, 
the  defendant  pleaded,  that  he  did  not  deliver  the  possession  to 
any  hut  such  as  lawfully  evicted  him.  On  demurrer  to  this  plea, 
it  was  objected,  that  the  same  was  ill,  and  a  negative  pregnant ; 
and  that  he  ought  to  have  said  that  such  a  one  lawfully  evicted 
him,  to  whom  he  delivered  the  possession ;  or  that  he  did  not 
deliver  the  possession  to  any ;  but  the  court  held  the  plea,  as 
pursuing  the  tvords  of  the  covenant,  good  —  being  in  the  negative 
—  and  that  the  plaintiff  ought  to  have  replied,  and  assigned 
a  breach ;  and  therefore  judgment  was  given  against  him.^ 

Rule  III.     Pleadings  must  not  be  argumentative.^ 

In  other  words,  the  pleadings  must  advance  thpit'  pnsiti'nng 
of  fact  in  an  absolute  form,  and  not  leave  them  to  be  collected 
iby  inference  and  argument  only. 

Examples  :  (1)  In  an  action  of  trover,  for  ten  pieces  of  money, 
the  defendant  pleaded  that  there  was  a  wager  between  the  plain- 
tiff and  one  C,  concerning  the  quantity  of  yards  of  velvet  in  a 
cloak ;  and  the  plaintiff  and  C.  each  delivered  into  the  defend- 
ant's hand  ten  pieces  of  money,  to  be  delivered  to  C.  if  there 
were  ten  yards  of  velvet  in  the  cloak,  and  if  not,  to  the  plaintiff ; 
and  proceeded  to  allege  that,  upon  measuring  of  the  cloah,  it  ivas 
found  that  there  were  ten  yards  of  velvet  therein  ;  whereupon  the 
defendant  delivered  the  pieces  of  money  to  C.  Upon  demurrer, 
"  Gawdy  held  the  plea  to  be  good  enough ;  for  the  measuring 
thereof  is  the  fittest  way  for  trying  it :  and  when  it  is  so  found 
by  the  measuring,  he  had  good  cause  to  deliver  them  out  of  his 
hands,  to  him  who  had  won  the  wager.  But  Fenner  and  Popham 
held  that  the  plea  was  not  good ;  for  it  may  be  that  the  meas- 
uring was  false ;  and  therefore  he  ought  to  have  averred,  in 
fact,  that  there  were  ten  yards,  and  that  it  was  so  found  upon  the 
measuring  thereof."  ^ 

(2)  In  an  action  of  trespass,  for  taking  and  carrying  away  the 
plaintiff's  goods,  the  defendant  pleaded  that  the  plaintiff  never 

1  Pullin  V.  Nicholas,  1  Lev.  83 ;  see  v.  Lubram,  ibid.  870  ;  Blackmore  v. 
Com.  Dig.  Pleader,  R.  6;  Semb.  cont.  Tidderley,  11  Mod.38  ;  s.  c.  2  Salk.  423  ; 
Lea  V.  Luthell,  Cro.  Jac.  559.  Murray  v.  East  India  Company,  5  Barn. 

2  Bac.   Ab.   Pleas,    &c.   L  5;    Com.  &  Aid.' 21 5. 

Dig.  E.  3  ;  Co.  Litt.  303  a ;  Dy.  43  a ;         3  Ledesham  v.  Lubram,  ubi  supra. 
"Wood  V.  Butts,  Cro.  Eliz.  260 ;  Ledesham 


TO   PEEVENT   OBSCUEITY   AND   CONFUSION   IN   PLEADING.      387 

had  any  goods.     "  This  is  an  infallible  argument,  that  the  defend- 
ant is  not  guilty,  and  yet  it  is  no  plea."  ^ 

(3)  In  ejectment,  the  defendant  pleaded  a  surrender  of  a  copy- 
hold, by  the  hand  of  Fosset,  then  steward  of  the  manor.  The 
plaintiff  traversed  that  Fosset  ivas  steward.  All  the  court  held 
this  to  be  no  issue,  and  that  the  traverse  ought  to  be  that  he 
did  not  surrender ;  for  if  he  were  not  steward,  the  surrender  is 
void.^ 

The  reason  of  this  last  decision  appears  to  be,  that  to 
deny  that  Fosset  was  steward  could  be  only  so  far  material  as 
it  tended  to  show  that  the  surrender  was  a  nullity ;  and  that 
it  was,  therefore,  an  argumentative  denial  of  the  surrender ; 
which,  if  intended  to  be  traversed,  ought  to  be  traversed  in 
a  direct  form. 

Two  Affirmatives  do  not  make  a  Good  Issue. 

It  is  a  branch  of  this  rule  that  two  affirmatives  do  not  maJce 
a  good  issue.^  The  reason  is,  that  the  traverse  by  the  second 
affirmative  is  argumentative  in  its  nature. 

Example :  If  it  be  alleged  by  the  defendant  that  a  party  died 
seised  in  fee,  and  the  plaintiff  allege  that  he  died  seised  in  tail, 
this  is  not  a  good  issue,^  because  the  latter  allegation  amounts  to 
a  denial  of  a  seisin  in  fee,  but  denies  it  by  argument  or  inference 
only. 

ms_this  branch  of  the  rule  against  arfjfum.P.'n.f.nfivP'nfsn  fbnf 
gave  rise  (as  in  part  already  explained)  to  the  form  of  a 
special  traverse.  Where,  for  any  of  the  reasons  mentioned 
in  a  preceding  part  of  this  "work,  it  becomes  expedient  for 
a  party  traversing  to  set  forth  new  affirmative  matter  tend- 
ing to  explain  or  qualify  his  denial,  he  is  allowed  to  do 
80 ;  but  as  this,  standing  alone,  will  render  his  pleading 
argumentative,  he  is  required  to  add  to  his  affirmative  allega- 
tionan  express  denial^  which  is  held  to  cure  or  prevent  the 
argumentativeness.^      Thus,  in  the  example  last  given,  the 

1  Doct.  PI.  41  ;  Dy.  43  a.  *  Doct.  PI.  349  ;  5  Hen.  VII.  11,12. 

2  Wood  V.  Butts,  Cro.  Eliz.  260.  5  Bac.  Ab.  Pleas,  &c.  H.  3  ;  Courtney 
8  Com.  Dig.  Pleader,  R.  3  ;  Co.  Litt.     v.  Phelps,  Sid.  301  ;  Herring  v.  Blacklow, 

126    a;    per    Buller,    J.,    Chandler    v.     Cro.  Eliz.  30;  10  Hen.  VI.  7,  PI.  21. 
Roberts,  Doug.  60 ;  Doct.  PI.  43,  360 ; 
Zouch  and  Barafield's  Case,  1  Leon.  77. 


388  COMMON-LAW   PLEADING. 

plaintiff  may  allege,  if  he  pleases,  that  the  party  died  seised 
in  tail ;  but  then  he  must  add,  absque  hoc,  that  he  died  seised 
in  fee,  and  thus  resort  to  the  form  of  a  special  traverse.^ 

Exception  to  Rule. 

The  doctrine,  however,  that  two  affirmatives  do  not  make 
a  good  issue,  is  not  taken  so  strictly  but  that  the  issue  will,  in 
some  cases,  be  good,  if  there  is  sufficient  negative  and  affirm- 
ative in  effect,  though,  in  the  form  of  words,  there  be  a  double 
affirmative. 

Examjjle :  In  debt  on  a  lease  for  years,  where  the  defendant 
pleaded  that  the  plaintiff  had  nothing  at  the  time  of  the  lease 
made,  and  the  plaintiff  replied  that  he  was  seised  in  fee,  this  was 
held  a  good  issue.^ 

Two  Negatives  do  not  make  a  Good  Issue. 

Another  branch  of  the  rule  against  argumentativeness  is 
that  two  negatives  do  not  make  a  good  issue.^ 

Exami^le :  If  the  defendant  plead  that  he  requested  the  plain- 
tiff to  deliver  au  abstract  of  his  title,  but  that  the  plaintiff  did 
not,  when  so  requested,  deliver  such  abstract,  but  neglected  so  to 
do,  the  plaintiff  can  not  reply  that  he  did  not  neglect  and  refuse 
to  deliver  siTch  abstract,  but  should  allege  affirmatively  that  he 
did  deliver.^ 

Rule  IY.     Pleadings  must  not  be  Hypothetical,  or  in  the 
Alternative.^ 

Examples :  (1)  In  an  action  of  debt  against  a  jailer  for  the 
escape  of  a  prisoner,  where  the  defendant  pleaded  that  i/ the  said 
prisoner  did,  at  any  time  or  times  after  the  said  commitment,  &c., 
go  at  large,  he  so  escaped  without  the  knowledge  of  the  defend- 
ant, and  against  his  will ;  and  that,  -(/"any  such  escape  was  made, 
the  prisoner  voluntarily  returned  into  custody  before  the  defend- 
ant knew  of  the  escape,  &c. ;  the  coiirt  held  the  plea  bad  :  for  "  he 
can  not  plead  hypothetically  that  if  there  has  been  an  escape  there 

1  Doct.  PI.  349.  *  Martin  v.  Smith,  6  East,  557. 

2  Co.  Litt.  126  a;  Eeg.  Plac.  297,  »  Griffiths  v.  Eyles,  1  Bos.  &  Pul. 
298;  and  see  Toralin  v.  Burlace,  1  413  ;  Cook  i;.  Cox,  3  M.  &  S.  114 ;  The 
Wils.   6.  Kingj^Brereton.SMod.SSOjWitherley 

8  Com.  Dig.  Pleader,  R.  3.  v.  Sarsfield,  1  Show.  127. 


TO   PREVENT   OBSCURITY   AND   CONFUSION   IN   PLEADING.      389 

has  also  been  a  return.  He  must  either  stand  upon  an  averment 
that  there  has  been  no  escape,  or  that  there  have  been  one,  two, 
or  ten  escapes,  after  which  the  prisoner  returned."  ^ 

(2)  Where  it  was  charged  that  the  defendant  wrote  and  pub- 
lished, or  caused  to  be  written  and  published,  a  certain  libel, 
this  was  considered  as  bad  for  uncertainty.^ 

Rule    V.    Pleadings  must  not  be    by  Way  op  Recital, 

BUT   MUST    BE   POSITIVE   IN   THEIR  FORM.^ 

Example :  If  a  declaration  in  trespass,  for  assault  and  battery, 
make  the  charge  in  the  following  form  of  expression :    "  and 

thereupon  the  said  A.  M.,  by ,  his  attorney,  complains,  for 

that  whereas  the  said  C.  D.  heretofore,  to  wit,  &c.,  made  an 
assault,'^  &c.,  instead  of  "/or  that  the  said  C.  D.  heretofore,  to  wit, 
&c.,  made  an  assault"  &c.  —  this  is  bad ;  for  nothing  is  positively 
affirmed.* 

WherE-^a-4eed- or  other  instrnmftnt  is  plendfid^  it  is  gen- 
erally not  proper  to  allege  (though  in  the  words  of  the  instru- 
ment itself)  that  it  is  witnessed  (testatum  existitj  that  such  a 
party  granted,  &c. ;  but  jt  should  be  stated  absolutely  and 
directly  that  he  granted,  &c.  But,  as  to  this  point,  a  differ- 
ence has  been  established  between  declarations  and  other 
pleadings.  In  the  former  (for  example,  in  a  declaration  of 
covenant)  it  is  sufficient  to  set  forth  the  instrument  with  a 
testatum  existitj  though  not  in  the  latter.  And  the  reason 
given  is,  that,  in  a  declaration,  such  statement  is  merely 
inducement ;  that  is,  introductory  to  some  other  direct  allega- 
tion. Thus,  in  covenant,  it  is  introductory  to  the  assignment 
of  the  breach.^ 

1  Griffiths  V.  Eyles,  1  Bos.  &  Pul.  413.  will  he  observed,  however,  that  in  trespass 

2  The  King  v.  Brereton,  8  Mod.  330.  on  the  case,  the  "  whereas  "   is   unobjec- 

3  Bac.  Ab.  Pleas,  &c.  B.  4 ;  Sherland  tionahle,  being  used  only  as  introductory 
V.  Heaton,  2  Bulst.  214;  Wettenhall  ?;.  to  some  subsequent  positive  allegation.  See 
Sherwin,  2  Lev.  206  ;  Mors  V.  Thacker,  also  Min.  Inst.  IV.  572,  1017,  1018. 
ibid.  193;  Hore  v.  Chapman,  2  Salk.  Professor  Minor  recommends  the  use  of 
636;  Dunstall  i;.  Dnnstall,  2  Show.  27 ;  the  following  formula:  "for  this,  to 
Gourney  v.  Fletcher,  ibid.  29.5  ;  Dobbs  wit." 

V.  Edmunds,  2  Ld.  Raym.  1413  ;  Wilder         ^  Bultivant    v.    Holman,    Cro.   Jac. 

V.  Handy,  Str.  1151 ;  Marshall  v.  Iliggs,  537  ;  1  Sannd.  274,  n.  1.     (See  the  form 

ibid.  1162.  of    declaring    with    a   testatum    existit. 

*  See  the  authorities  last  cited.    It  3  Went.  352,  523.) 


390  common-law  pleading. 

Rule  VI.     Things  are  to  be  Pleaded  according  to  their 
Legal  Effect  or  Operation.^ 

;  The  meaning  is,  that  in  stating  an  instrument  or  other 
matter  in  pleading,  it  should  be  set  forth,  not  according  to  its 
terms,  or  itsj^o/^^,  but  according  to  its  effect  in  law  :  and  the 
reason  seems  to  be,  that  it  is  under  the  latter  aspect  that  it 
must  principally  and  ultimately  be  considered;  and  therefore, 
to  plead  it  in  terms  or  form  only,  is  an  indirect  and  circuitous 
method  of  allegation. 

Examples :    (1)  If  a  joint  tenant  conveys  to  his  companion  ^ 
the  words  "gives,"  "grants,"  &c.,  his  estate  in  the  lands  holde. 
in  jointure,  this,  though  in  its  terms  a  grant,   is  not  properly 
such  in  operation  of  law,  but  amounts  to  that  species  of  con- 
veyance called  a  release.     It  should  therefore  be  pleaded,  not 
that  he  ^'^granted,"  &c.,  but  that  he  "  released,'"  &,c.^ 

(2)  If  a  tenant  for  life  grant  his  estate  to  him  in  reversion, 
this  is,  in  effect,  a  surrender,  and  must  be  pleaded  as  such,  and 
not  as  a  grant.^ 

(3)  Where  the  plea  stated  that  A.  was  entitled  to  an  equity  of 
redemption,  and,  subject  thereto,  that  B.  was  seised  in  fee,  and 
that  they,  by  lease  and  release,  granted,  «&;c.,  the  premises,  ex- 
cepting and  reserving  to  A.  and  his  heirs,  &c.,  a  liberty  of 
hunting,  &c.,  it  was  held  upon  general  demurrer,  and  after- 
wards upon  writ  of  error,  that  as  A.  had  no  legal  interest  in 
the  land  there  could  be  no  reservation  to  him;  that  the  plea, 
therefore,  alleging  the  right  (though  in  terms  of  the  deed)  by 
way  of  reservation  was  bad ;  and  that  if  (as  was  contended  in 
argument)  the  deed  would  operate  as  a  grant  of  the  right,  the 
plea  should  have  been  so  pleaded,  and  should  have  alleged  a 
grant  and  not  a  reservation.* 

The  rule  in  question  is,  in  its  terms,  often  confined  to 
deeds  and  conveyances.  It  extends,  however,  to  all  instru- 
ments  in   writing,   and   contracts,   written   or   verbal;    and, 

1  Bac.    Ab.   Pleas,  &c.  I.   7  ;    Com.  2  2  Saund.  97 ;    Barker  v.  Lade,  4 

Dig.  Pleader,  C.  37  ;  2  Saund.  97,  and  Mod.  150,  151. 
97  b',  n.  2  ;  Barker  v.  Lade,  4  Mod.  150 ;  3  Barker  v.  Lade,  4  Mod.  151. 

Howel  y.  Bichards,  11  East,  633;  Moore         *  Moore    v.  Earl  of   Plymouth,  ubi 

V.  Earl  of  Plymouth,  3  Barn.  &  Aid.  66 ;  supra. 
Stroud  V.  Lady  Gerard,  1    Salk.  8;    1 
Saund.  235  b,  n.  9. 


TO   PREVENT   OBSCURITY   AND    CONFUSION   IN   PLEADING.      391 

indeed,  it  may  be  said,  genei'ally,  to  all  matters  or  transac- 
tions whatever  which  a  party  may  have  occasion  to  allege  in 
pleading,  and  in  which  the  form  is  distinguishable  from  the 
legal  effect.^ 

Exception. 

But  there  is  an  exception  in  the  case  of  a  declaration  for 
written  or  verbal  slander,  where  (as  the  action  turns  on  the 
words  themselves)  the  words  themselves  must  he  set  forth ; 
and  it  is  not  sufficient  to  allege  that  the  defendant  published 
a  libel,  containing  false  and  scandalous  matters,  in  substance 
as  follows,  &c.,  or  used  words  to  the  effect  following,  &c? 

Rule  VII.  Pleadings  should  observe  the  Known  and 
Ancient  Forms  of  Expression,  as  contained  in  Ap- 
PRjjvED  Precedents.^ 

Thus,  so  long  ago  as  in  the  time  of  Bracton,  in  the  count 
on  a  writ  of  right  there  were  certain  words  of  form,  besides 
those  contained  in  the  writ,  which  were  considered  as  essen- 
tial to  be  inserted.  It  was  necessary  to  allege  "  the  seisin  "  of 
the  ancestor  "  in  his  demesne  as  of  fee  "  —  and  "  of  right  "  — 
"  %  taking  the  esplees  "  —  "  in  the  time  of  such  a  king  "  —  and 
(if  the  seisin  were  alleged  at  a  period  of  civil  commotion) 
"m  time  of  peace  J^^  And  all  this  is  equally  necessary  in 
framing  a  count  on  a  writ  of  right  at  the  present  day ;  and 
no  parallel  or  synonymous  expressions  will  supply  the  omis- 
sion.^ So,  too,  the  general  issues  are  examples  of  forms  of 
expression  fixed  by  ancient  usage  from  which  it  is  improper 

1  Stroud  V.  Lady  Gerard,  1  Salk.  8.  ^  Com.     Dig.     Abatement,     G.    7  ; 

2  Wright  V.  Clemeuts,  3  Barn.  &  Aid.  Buckley  v.  Eice  Thomas,  Plow.  12.3; 
503;  Cook  v.  Cox,  3  M.  &  S.  110;  Dally  v.  King,  1  H.  Bl.  1;  Slade  v. 
Newton  v.  Stubbs,  2  Show.  435.  But  Dowland,  2  Bos.  &  Pul.  570;  Dowland 
in  an  action  for  a  malicious  prosecution,  v.  Slade,  5  East,  272 ;  King  v.  Fraser,  6 
if  the  declaration  states  merely  that  the  East,  351  ;  Dyster  v.  Batty o,  3  Barn.  & 
defendant,  without  reasonable  or  prob-  Aid.  448;  per  Abbott,  C.  J.,  Wright  v. 
able   cau,se,   indicted    the   plaintiff  for  Clements,  ibid.  507. 

perjury,  without  setting   forth  the    in-  *  Bract.  373  a,  b. 

dictment,  this  is  sufficient  after  verdict.  ^  Slade     v.    Dowland,    ubi     snpra  ; 

(Pippot  K.  Hearn,  5  Barn.  &  Aid.  634.)  Dally    v.    King,  ubi    supra;   Dowland 

See   also  Blizard   v.   Kelly,  2  Barn.  &  v.  Slade,  ubi  supra. 

Cre.ss.  283;    Davis  v.  Noake,  6  M.  & 

8.33, 


392  COMMON-LAW  PLEADING. 

to  depart.     And  another  illustration  of  this  rule  occurs  in  the 
following  modern  case  :  — 

Example:  To  an  action  on  the  case,  the  defendants  pleaded 
the  statute  of  limitations,  viz.,  that  they  were  not  guilty  within 
six  years,  &c.  The  court  decided,  upon  special  demurrer,  that 
this  form  of  pleading  was  bad,  upon  the  ground  that  "  from  the 
passing  of  the  statute  to  the  present  case  the  invariable  form  of 
pleading  the  statute  to  an  action  on  the  case  for  a  wrong  has 
been  to  allege  that  the  cause  of  action  did  not  accrue  within  six 
years,  &c. ; "  and  that  "  it  was  important  to  the  administration 
of  justice  that  the  usual  and  established  forms  of  pleading 
should  be  observed."  ^ 

It  may  be  remarked,  however,  with  respect  to  this  rule,  that 
the  allegations  to  which  it  relates  are  of  course  only  those 
of  frequent  and  ordinary  recurrence ;  and  that  even  as  to 
these,  it  is  rather  of  uncertain  application,  as  it  must  be  often 
doubtful  whether  a  given  form  of  expression  has  been  so  fixed 
by  the  course  of  precedent  as  to  admit  of  no  variation. 

Another  rule,  connected  in  some  measure,  with  the  last,  and 
apparently  referable  to  the  same  object,  is  the  following : 

Rule  YIII.     Pleadings  should  have  theie  Proper  Formal 
Commencements  and  Conclusions.^ 

This  rule  refers  to  certain  formulce  occurring  at  the  com- 
mencement of  pleadings  subsequent  to  the  declaration,  and  to 
others  occurring  at  the  conclusion. 

A  formula  of  the  latter  kind,  inasmuch  as  it  prays  the 
judgment  of  the  court  for  the  party  pleading,  is  often  denom- 
inated thej^raver  of  Judgment,  and  occurs  (it  is  to  be  observed) 
in  all  pleadings  that  do  not  tender  issue,  but  in  those  only. 

Formal  Commencements  and  Conclusions  of  Dilatory  Pleas. 

A  plea  to  the  jurisdiction  has  usually  no  commencement  of 
the  kind  in  question.^     Its  co7ielusion  is  as  follows  : 

1  Dyster  v.  Battye,  3  Barn.  &  Aid.  Saund.  209,  n.  1  ;  per  Holt,  C.  J., 
448.  Bowyer  v.  Cook,    5  Mod.  146. 

2  Co.  Litt.  .303  b ;  Com.  Dig.  Pleader,  ^  But  sometimes  it  has  such  com- 
E.  27,  E.  28,  E.  32,  E.  33,  F.  4,  F.  5,  G.  mencement.     Chit.  PI.  399. 

1 ;    Com.   Dig.  Abatement,  I.   12 ;    2 


^ 


TO   PREVENT   OBSCURITY   AND   CONFUSION   IN   PLEADING.      393 

—  the  said  C.  D.  prays  judgment  if  the  court  of  our  lord  the 
king  here  will  or  ought  to  have  further  cognizance  of  the  plea  ^ 
aforesaid. 

or  (in  some  cases)  thus  :  — 

—  the  said  C.  D.  prays  judgment  if  he  ought  to  be  compelled  to 
answer  to  the  said  plea  here  in  court.'-^ 

A  PLEA  IN  SUSPENSION  seems  also  to  be  generally  pleaded 
without  a  formal  commencement.^  Its  conclusion  (in  the  case 
of  a  plea  of  nonage)  is  thus  :  — 

—  the  said  C.  D.  prays  that  the  parol  may  demur  (or  that  the 
said  plea  may  stay  and  be  respited)  until  the  full  age  of  him,  the 
said  C.  D.,  &c.* 

A  PLEA  IN  ABATEMENT  is  also  usually  pleaded  without  a 
formal  commencement^  within  the  meaning  of  this  rule.^  The 
conclusion  is  thus :  — 

in  case  of  plea  to  the  writ  or  hill, 

—  prays  judgment  of  the  said  writ  and  declaration  (or  bill),  and 
that  the  same  may  be  quashed.^ 

in  case  of  plea  to  the  person, 

—  prays  judgment  if  the  said  A.  B.  ought  to  be  answered  to  his 
said  declaration  (or  bill).'' 

1  1  "Went.  49  ;  Bl.  Com.  III.  303  * ;  matter  explained,  Saund.  and  Arch. 
Powers  V.  Cook,  1  Ld.  Raym.  63.  ibid.,  to  which  the  reader  is  referred 

2  I  Went.  41,  49;  Bac.  Ab.  Pleas,  generally  for  the  learning  on  the 
&c.  E.  2 ;  per  Holt,  C.  J.,  Bowyer  v.  subject  of  these  formula  of  pleas  in 
Cook,  5  Mod.  146  ;  Powers  v.  Cook,  ubi  abatement. 

supra.  ®  Powers     v.    Cook,    ubi    supra;    2 

3  Plasket  V.  Beeby,  4  East,  485.  Saund.   ubi  supra  ;    Com.  Dig.  Abate- 
*  1   Went.  43.     As  to  the  form,  in    ment,  I.  12.     Yet  in  some  instances,  it 

other  pleas  in  suspension,  see  Lib.  Plac.  seems,  it  may  be  si  curia  cognoscere  velit 

9,  10;  1  Went.  15;  2  Saund.  210,  n.  1;  (if    the   court   will    take    cognizance). 

John  Trollop's    Case,  8    Co.  Rep.  69;  (Chatland   v.   Thornly,    12   East,  544.) 

Reg.  Plac.  180;  Onslow  y.  Smith,  2  Bos.  In  proceedings  by  bill,  it  seems  that  it 

&  Pul.  384.  is  informal   to   pray  judgment  of  tlie 

^  2  Saund.  209  a,  n.  1  ;  1  Arch.  305  ;  declaration,  or  of  the  bill  and  declaration. 
Lutw.  11.     But  if  a  matter  apparent  on         ''  Co.  Litt.  128  a;  Com.  Dig.  Abate- 

ihe  face  of  the  ivrit  be  pleaded,  there  ment,  I.  12;  1  Went.  58,62. 
should   be  a  commencement.      See   this 


394  common-law  pleading. 

Formal  Commencements  and  Conclusions  op  Pleas  in  Bar. 
A  PLEA  IN  BAR  has  this  commencement :  — 

—  says  that  the  said  A.  B.  ought  not  to  have  or  maintain  his 
aforesaid  action  against  him,  the  said  CD.,  because,  he  says,  &c. 

This  formula  is  commonly  called  actio  non. 

The  conclusion  is, 

—  prays  judgment  if  the  said  A.  B.  ought  to  have  or  maintain  his 
aforesaid  action  against  him. 

Formal  Commencements  and  Conclusions  op  Replications. 

A  replication  to  a  plea  to  the  jurisdiction  has  this  com- 
mencement :  — 

—  says  that  notwithstanding  anything  by  the  said  C.  D.  above 
alleged,  the  court  of  our  lord  the  king  here  ought  not  to  be  pre- 
cluded from  having  further  cognizance  of  the  plea  aforesaid, 
because,  he  says,  &c.-^ 

or  this :  — 

—  says  that  the  said  C.  D.  ought  to  answer  to  the  said  plea  here 

in  court,  because,  he  says,  &c.^ 

and  this  conclusion :  — 

—  wherefore  he  prays  judgment,  and  that  the  court  here  may  take 
cognizance  of  the  plea  aforesaid,  and  that  the  said  C.  D.  may 
answer  over,  &c.^ 

A  replication  to  a  plea  in  suspension  (in  the  case  of  a 
plea  of  nonagej  has  this  commenceinent :  — 

—  says  that  notwithstanding  anything  by  the  said  C.  D.  above 
alleged,  the  parol  ought  not  further  to  demur  for,  the  said  plea 
ought  not  further  to  stay,  or  be  respited),  because,  he  says,  &c.* 

And  (if  there  be  any  case  in  which  such  replication  does 
not  tender  issue)  it  should  probably  have'  this  conclusion  :  — 

1  1  Went.  60 ;  Lib.  Plac.  348.  »  Lib  piac.  348 ;  1  Went.  39. 

2  1  Went.  39.  *  Liber  Intrat. 


TO   PREVENT   OBSCURITY   AND   CONFUSION  IN   PLEADING.      895 

—  wherefore  he  prays  judgment  if  the  parol  ought  further  to 
demur  (or,  if  the  said  plea  ought  further  to  stay,  or  be  respited), 
and  that  the  said  C.  D.  may  answer  over, 

A   REPLICATION   TO  A  PLEA  IN  ABATEMENT  has  this  com- 
mencement :  — 

where  the  plea  was  to  the  writ  or  hill^ 

—  says  that  his  said  writ  and  declaration  (or  bill),  by  reason  of 
anything  in  the  said  plea  alleged,  ought  not  to  be  quashed ;  be- 
cause, he  says,  &c} 

where  the  plea  was  to  the  person, 

—  says  that  notwithstanding  anything  in  the  said  plea  alleged, 
he,  the  said  A.  B.,  ought  to  be  answered  to  his  said  declaration 

(or  bill)  ;  because  he  says,  «&c.^ 

The  conclusion,  in  most  cases,  is  thus  :  — 
where  the  plea  was  to  the  writ  or  hill, 

—  wherefore  he  prays  judgment,  and  that  the  said  writ  and  de- 
claration (or  bill)  may  be  adjudged  good,  and  that  the  said  C.  D. 
may  answer  over,  &c. 

where  the  plea  was  to  the  'person, 

—  wherefore  he  prays  judgment,  and  that  the  said  C.  D.  may 
answer  over,  &c.^ 

A  REPLICATION  TO  A  PLEA  IN  BAR  has  this  commencement :  — 

—  says  that  by  reason  of  anything  in  the  said  plea  alleged,  he 
ought  not  to  be  barred  from  having  and  maintaining  his  aforesaid 
action  against  him,  the  said  C.  D. ;  because,  he  says,  &c. 

This  formula  is  commonly  called  precludi  non. 

The  conclusion  is  thus  :  — 
in  debt, 

—  wherefore  he  prays  judgment,  and  his  debt  aforesaid,  together 

1  1   Arch.   309;    Rast.  Ent.  126  a;    155;  Carth.  137.      As  to  the  cases  in 
Sabine  v.  Johnstone,  1  Bos.  &  Pul.  60.       which  the  conclusion  should  be  different, 

2  1  Went.  42 ;  I  Arch.  309.  and  should  pray  damages,  see  2  Saund. 
8  1  Went.  43,  45,  54;  1  Arch.  309;    211,  n.  3  ;  Medina  v.  Stoughton,   1  Ld. 

Rast.  Ent.  126  a;  Bisse  v.  Harcourt,  3  Raym.  594;  Co.  Ent.  160  a;  Lil.  Ent 
Mod.  281;   s.  c.  1  Salk.  177;   1  Show,    123;  Lib.  Plac,  1. 


396  COMMON-LAW  PLEADING. 

with  his  damages  by  him  sustained  by  reason  of  the  detention 
thereof,  to  be  adjudged  to  him. 

in  covenant, 

—  wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained by  reason  of  the  said  breach  of  covenant,  to  be  adjudged 
to  him. 

in  trespass., 

—  wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained by  reason  of  the  committing  of  the  said  trespasses,  to  be 
adjudged  to  him. 

in  trespass  on  the  case,  in  assumpsit, 

—  wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained by  reason  of  the  not  performing  of  the  said  several  prom- 
ises and  undertakings,  to  be  adjudged  to  him. 

in  trespass  on  the  case,  in  general, 

—  wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained by  reason  of  the  committing  of  the  said  several  grievances, 
to  be  adjudged  to  him. 

And  so,  in  all  other  actions,  the  replication  concludes  with 
a  prayer  of  judgment  for  damages  or  other  appropriate  redress, 
according  to  the  nature  of  the  action. 

Pleadings  Subsequent  to  the  Replication. 

With  respect  to  pleadings  subsequent  to  the  eeplication, 
it  will  be  sufficient  to  observe,  generally,  that  those  on  the 
part  of  the  defendant  follow  the  same  form  of  commencement 
and  conclusion  as  the  plea ;  those  on  the  part  of  the  plaintiff, 
the  same  as  the  replication. 

These  forms  are  subject  to  the  following  variations :  — 
First,  with  respect  to  pleas  in  abatement.  Matters  of  abate- 
ment, generally,  only  render  the  writ  abatable  upon  plea ; 
but  there  are  others,  such  as  the  death  of  the  plaintiff  or 
defendant  before  verdict  or  judgment  by  default,  that  are  said 
to  abate  it  de  facto ;  that  is,  by  their  own  immediate  effect, 
and  before  plea ;  the  only  use  of  the  plea,  in  such  cases,  being 


TO  PEEVENT   OBSCURITY   AND   CONFUSION   IN   PLEADING.      397 

to  give  the  court  notice  of  the  fact.^  Where  the  writ  is 
merely  abatable,  the  forms  of  conclusion  above  given  are  to 
be  observed  ;  but,  when  abated  de  facto,  the  conclusion  must 
pray,  ^''whether  the  court  will  further  proceed;^'  for  the  writ 
being  already,  and  ipso  facto,  abated,  it  would  be  improper  to 
pray  "  that  it  may  be  quashed^  ^ 

Again,  when  a  plea  in  bar  is  pleaded  puis  darreign  continu- 
ance, it  has,  instead  of  the  ordinary  actio  non,  a  commencement 
and  conclusion  of  actio  non  ulterius  (action  not  further). 

So,  if  a  plea  in  bar  be  founded  on  any  matter  arising  after 
the  commencement  of  the  action,  though  it  be  not  pleaded  after 
a  previous  plea,  and  therefore  not  puis  darreign  continuatice, 
yet  it  pursues,  in  that  case  also,  in  its  commencement  and  con- 
clusion, the  same  form  of  actio  non  ulterius,  instead  of  actio 
non  generally ;  ^  for  the  actio  non  is  taken  to  refer,  in  point  of 
time,  to  the  commencement  of  the  suit,  and  not  to  the  time  of 
plea  pleaded,  and  would,  therefore,  in  the  case  supposed,  be 
improper.* 

Commencements  and  Conclusions  of  Pleadings  by  Way  of 

Estoppel. 

All  pleadings  by  way  of  estoppel  have  a  commencement  and 
conclusion  peculiar  to  themselves. 

A  plea  in  estoppel  has  the  following  commencement :  — 

"  says  that  the  said  A.  B.  ought  not  to  be  admitted  to  say  " 
(stating  the  allegation  to  which  the  estoppel  relates)  ; 

and  the  following  conclusion  :  — 

"  wherefore  he  prays  judgment  if  the  said  A.  B.  ought  to  be 
admitted,  against  his  own  acknowledgment,  by  his  deed  afore- 
said "  (or  otherwise,  according  to  the  matter  of  the  estoppel), 
"  to  say  that "  (stating  the  allegation  to  which  the  estoppel 
relates).^ 

1  Bac.  Ab.  Abatement,  K.,  G.,  F. ;         »  Le  Bret  v.  PapUlon,  4  East,  502. 
Com.  Dig.  Abatement,  E.  1 7  ;  2  Saund.         *  Le   Bret  v.    Papillon,  ubi  supra  ; 
210,  n.  1.  Evans  v.  Prosser,  3  T.  K.  186;  Selw. 

2  Com.   Dig.   Abatement,  H.  33,  I.  N.  P.  138. 

12;  2  Saund.  210,  n.  1;  Hallowes  v.  ^  1  Arch.  202;  Veale  v.  Warner,  I 
Lucy,  3  Lev.  120.  Saund.  325 ;  3  Edw.  III.  21. 


398  COMMON-LAW  PLEADING. 

A  replication,  by  way  of  estoppel,  to  a  plea,  either  in  abate- 
ment or  bar,  has  this  commencement :  — 

"  says  that  the  said  C.  D.  ought  not  to  be  admitted  to  pl^dd 
the  said  plea  hy  him  above  pleaded ;  because,  he  says^''  &c} 

Its  conclusion,  in  case  of  a  plea  in  abatement,  is  as  follows  : 

"  wherefore  he  prays  judgment  if  the  said  C.  B.  ought  to  be 
admitted  to  his  said  plea,  contrary  to  his  own  acknowledgment, 
^c,  and  that  he  may  answer  over^''  &c. 

In  case  of  a  plea  in  bar  :  — 

wherefore  he  prays  "  judgment  if  the  said  0.  D.  ought  to  be 
admitted,  contrary  to  his  own  acknowledgment,  ^c,  to  plead, 
that "  (stating  the  allegation  to  which  the  estoppel  relates). 

Rejoinders  and  subsequent  pleadings  follow  the  forms  of 
pleas  and  replications  respectively .^ 

When  Pleading  is  to  a  Pakt  only  of  Adverse  Matter. 

If  any  pleading  be  intended  to  apply  to  part  only  of  the 
matter  adversely  alleged,  it  must  be  qualified  accordingly, 
in  its  commencement  and  conclusion.^  ' 

Variations  in  Replevin. 

Another  variation  occurs  in  the  action  of  replevin. 

Avowries  and  cognizances, instead  of  being  pleaded  with  actio 
non  commence  thus :  an  avowry,  that  the  defendant  "  tvell 
avows  ;  "  a  cognizance,  that  he  "  well  acknowledges  "  the  tak- 
ing, &c. ;  and  conclude  thus  :  that  the  defendant  '■'-  prays  judg- 
ment and  a  return  of  the  said  goods  and  chattels,  together  with 
his  damages,  ^c,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided,  to  be  adjudged  to  him^^  <fec. 

And  the  subsequent  pleadings  have  corresponding  variations. 

Variations  in  Actions  of  Debt  on  Bond. 

Lastly,  when  in  an  action  of  debt  on  bond,  some  matter  is 
pleaded  in  bar,  tending  to  show  that  the  plaintiff  never  had 
any  right  of  action,  and  not  matter  in  discharge  of  a  right 

1  Took  )•.  Glascock,  1  Saund.  257.  8  Weeks  v.  Peach,  I  Salk.  179. 

2  Yeale  r.  Warner,  1  Saund.  325. 


TO   PREVENT   OBSCURITY  AND    CONFUSION   IN   PLEADING.      399 

once  existing  (as,  for  example,  when  it  is  pleaded  that  the 
bond  was  void  for  some  illegality),  the  plea  in  that  case,  in- 
stead of  actio  non,  has  the  following  commencement,  commonly 
called  onerari  non : 

"  says  that  he  ought  not  to  he  charged  with  the  said  debt,  ly 
virtue  of  the  said  supposed  writing  obligatory,  because,  he 
says,'''   &c. 

And  the  conclusion  is  thus  :  "  wherefore  he  prays  judgment 
if  he  ought  to  he  charged  tvith  the  said  debt  by  virtue  of  the  said 
supposed  writing  obligatory."  ^ 

Exception  to  Rule, 

While  pleadings  have  thus,  generally,  the  formal  com- 
mencements and  conclusions,  there  is  an  exception  (as  already 
noticed)  in  the  case  of  all  such  pleadings  as  tender  issue. 
These,  instead  of  the  conclusion  with  a  prayer  of  judgment,  as 
in  the  above  forms,  conclude  (in  the  case  of  the  trial  by  jury) 
to  the  country  ;  or  (if  a  different  mode  of  trial  be  proposed) 
with  other  appropriate /orwwte,  as  already  explained.  Plead- 
ings which  tender  issue  have,  however,  the  formal  commence- 
ments, with  the  exception  of  the  general  issues,  which  have 
neither  formal  commencement  nor  conclusion,  in  the  sense  to 
which  the  present  rule  refers. 

Effect  of  Error  in  Formal  Commencements  or  Conclu- 
sions OF  Pleadings. 

A  defect  or  impropriety  in  the  commencement  and  conclu- 
sion of  a  pleading  is  generally  ground  for  demurrer.^  But  if 
the  commencement  pray  the  proper  judgment,  it  seems  to  be 
sufficient,  though  judgment  be  prayed  in  an  improper  form  in 
the  conclusion.^     And  the  converse  case,  as  to  a  right  prayer 

1  Com.  Dig.  Pleader,  E.  27 ;  Brown  &  Pul.  420.  But  in  some  cases,  a  bad 
V.  Cornish,  Salk.  516;  Bennet  v.  Fil-  conclusion  makes  the  plea  a  mere 
kins,  1  Saund.  14  b. ;  iii'rf.  290,  n.  3.  nullity,  and   operates    as    a    discontin- 

2  Nowlan  v.  Geddes,  1  East,  634 ;  uance.  Bisse  v.  Harcourt,  3  Mod.  281  ; 
Wilson  V.  Kemp,  2  M.  &  S.  549  ;  Le  s.  c.  1  Salk.  177  ;  1  Show.  155  ;  Carth. 
Bret   V.  Papillon,   4   East,   502 ;    Com.  137 ;  Weeks  v.  Peach,  ubi  supra. 

Dig.  Pleader,  E.  27 ;  Weeks  v.  Peach,  1  ^  Street  v.  liopkinson,  Rep.  Temp. 

Salk.  179;  Powell  v.  Fullerton,  2  Bos.    Hard.  345. 


400  COMMON-LAW  PLEADING. 

in  the  conclusion^  with  an  improper  commencement,  has  been 
decided  the  same  way.^  So,  if  judgment  be  simply  prayed, 
without  specifying  what  judgment,  it  is  said  to  be  sufficient ; 
and  it  is  laid  down  that  the  court  will,  in  that  case,  ex  officio, 
award  the  proper  legal  consequence.^  It  seems,  however,  that 
these  relaxations  from  the  rule  do  not  apply  to  pleas  in  abate- 
ment;  the  court  requiring  greater  strictness  in  these  pleas, 
in  order  to  discourage  their  use.^ 

The  Conclusion  makes  the  Pleading. 

It  will  be  observed  that  the  commencement  and  conclusion  of 
a  plea  are  in  such  form  as  to  indicate  the  intention  with  which 
it  is  pleaded,  and  to  mark  its  object  and  tendency,  as  being  either 
to  the  jurisdiction,  in  sus2)ension,  in  abatement,  or  in  bar.  It 
is  therefore  held  that  the  class  and  character  of  a  plea  depend 
upon  these,  its  formular  parts ;  this  is  ordinarily  expressed 
by  the  maxim,  conclusio  facit  placitum  (the  conclusion  makes 
the  plea).*  Accordingly,  if  it  commence  and  conclude  as  in  bar, 
but  co7itain  matter  sufficient  only  to  abate  the  ivrit,  it  is  a  bad 
plea  in  bar,  and  no  plea  in  abatement.^  And,  on  the  other 
hand,  it  has  been  held  that  if  a  plea  commence  and  conclude 
as  in  abatement,  and  show  matter  in  bar,  it  is  a  plea  in  abate- 
ment and  not  in  bar.^ 

As  the  commencement  and  conclusion  have  this  effect  of 
defining  the  character  of  the  jylea,  so  they  have  the  same 
tendency  in  the  replication  and  subsequent  pleadings.  For 
example,  they  serve  to  show  whether  the  pleading  be  intended 
as  in  confession  and  avoidance  or  estoppel,  and  whether 
intended  to  be  pleaded  to  the  whole  or  to  part.  From  these 
considerations  it  is  apparent  that  they  are  forms  which,  on 

1  Talbot  V.  Hopewood,  Fort.  335.  Raym.   593  ;  Talbot  v.  Hopewood,   ubi 

2  Le  Bret  v.  PapiUon,  4  East,  502  ;    supra. 

1  Saund.  97,  n.  1;    Chit.  PI.  394,  395,  ^  Nowlan   v.  Geddes,   1    East,   634; 

476,  477.  Wallis  v.  Savil,  1  Lutw.  41  ;  2  Saund. 

^  The  King  v.  Shakespeare,  10  East,  209  d,  n.  1 ;  per  Littleton,  J.,  36  Hen. 

83;  Attwood  y.  Davis,  1  Barn.  &  Aid.  VI.    18;    Medina    r.    Stoughton,    ubi 

172.  supra. 

*  Street  v.  Hopkinson,   Rep.  Temp.  ^  Medina    r.  Stoughton,  itbi  supra  / 

Hard.  346 ;  Medina  v.  Stoughton,  1  Ld.  Godson  v.  Good,  6  Taunt.  587. 


\ 


TO    PREVENT   OBSCURITY   AND   CONFUSION   IN   PLEADING.      401 

the  whole,  materially  tend  to  clearness  and  precision  in  plead- 
ing ;  and  they  have,  for  that  reason,  been  considered  under 
this  section. 

In  connection  with  the  rule  last  mentioned,  and  to  further 
the  same  objects  of  clearness  and  precision,  the  following  rule 
is  established  :  — 

Rule   IX.     A    Pleading   which   is   Bad   in  Part   is  Bad 
Altogether.^ 

The  meaning  of  this  rule  is  that,  if  in  any  material  part  of  a 
pleading,  or  with  reference  to  any  of  the  material  things  which 
it  undertakes  to  answer,  or  to  either  of  the  parties  answering, 
the  pleading  he  had,  though  in  other  respects  it  be  free  from 
objection,  the  whole  of  it  is  open  to  demurrer  ;  so  that,  if  the 
objection  be  good,  the  whole  pleading  in  question  is  overruled, 
and  judgment  given  accordingly. 

Examples :  (1)  If  in  a  declaratiou  of  assumpsit  two  different 
promises  be  alleged  in  two  different  counts,  and  the  defendant 
plead  in  bar  to  both  counts  conjointly  the  statute  of  limitations^ 
viz.,  that  he  did  not  promise  within  six  years,  and  the  plea  be  an 
insufficient  answer  as  to  one  of  the  counts,  but  a  good  bar  to  the 
other,  the  whole  plea  is  bad,  and  neither  promise  is  sufficiently 
answered.^ 

(2)  Where  to  an  action  of  trespass  for  false  imprisonment 
against  two  defendants,  they  pleaded  that  one  of  them,  A.,  having 
ground  to  believe  that  his  horse  had  been  stolen  by  the  plaintiff, 
gave  him  in  charge  to  the  other  defendant,,  a  constable,  where- 
upon the  constable  and  A.,  in  his  aid  and  by  his  command,  laid 
hands  on  the  plaintiff,  &c.,  the  plea  was  adjudged  to  be  bad  as  to 
both  defendants,  because  it  showed  no  reasonable  ground  of  sus- 
picion :  for  A.  could  not  justify  the  arrest  without  showing 
such  ground ;  and  though  the  case  might  be  different  as  to  the 
constable,  whose  duty  was  to  act  on  the  charge,  and  not  to  delib- 
erate, yet  as  he  had  not  pleaded  separately,  but  had  joined  in  A.'s 
justification,  the  plea  was  bad  as  to  him  also.^ 

i  Com.  Dig.  Pleader,  E.  36,  F.  25 ;     Scott,  3  T.  R.  374 ;  Hedges   v.   Chap- 
I  Saund.  28,  n.  2;  Webb  v.  Martin,  1     man,   2   Ring.   523;   Earl   of  St.    Ger- 
Lev.  48;   Rowe  v.  Tutte,  Willes,   14;    mains  u.  Willan,  2  Barn.  &  Cress.  216. 
Trueman  v.  Hurst,  1  T.  R.  40 ;  Web-         ^  Webb  v.  Martin,  ithl  supra. 
ber  V.  Tivill,  2  Saund.  127  ;  Duffield  v.         8  Hedges  v.  Chapman,  ubi  supra. 

26 


402  COMMON-LAW   PLEADING. 

This  rule  seems  to  result  from  that  which  requires  each 
pleading  to  have  its  propei-  formal  commencement  and  conclu- 
sion. For  by  those  forms  (it  will  be  observed)  the  matter 
which  any  pleading  contains  is  offered  as  an  entire  answer  to 
the  whole  of  that  which  last  preceded. 

Example:  In  the  first  example  above  given,  the  defend- 
ant would  allege,  in  the  commencement  of  his  plea,  that  the 
plaintiff  "  ought  not  to  have  or  maintain  his  action "  for  the 
reason  therein  assigned ;  and,  therefore,  he  would  pray  judg- 
ment, &c.,  as  to  the  whole  action  in  the  conclusion.  If,  there- 
fore, the  answer  be  insufficient  as  to  one  count,  it  can  not  avail  as 
to  the  other;  because,  if  taken  as  a  plea  to  the  latter  only,  the 
comm,encement  and  conclusion  would  be  wrong.  It  is  to  be 
observed  that  there  is  but  one  plea,  and  consequently  but  one 
commencement  and  conclusion;  but  if  the  defendant  should 
plead  the  statute  in  bar  to  the  first  count  separately,  and  then 
plead  it  to  the  second  count  with  a  new  commencement  and  con- 
clusion, thus  making  two  pleas  instead  of  one,  the  invalidity  of 
one  of  these  pleas  could  not  vitiate  the  other. 

Rule  not  Applicable  to  the  Declaration. 

As  the  declaration  contains  no  commencement  or  conclusion 
of  the  kind  to  which  the  last  rule  relates,  so,  on  the  other  hand, 
the  declaration  does  not  fall  within  the  rule  now  in  question. 
Therefore,  if  a  declaration  be  good  in  part,  though  bad  as  to 
another  part  relating  to  a  distinct  demand  divisible  from  the 
rest,  and  the  defendant  demur  to  the  whole,  instead  of  confin- 
ing his  demurrer  to  the  faulty  part  only,  the  court  will  give 
judgment  for  the  plaintiff.^  It  is  also  to  be  observed  that  the 
rule  applies  only  to  material  allegations;  for  where  the  objec- 
tionable matter  is  mere  surplusage^  and  unnecessarily  intro- 
duced (the  answer  being  complete  without  it),  its  introduction 
does  not  vitiate  the  rest  of  the  pleading.^ 

1  1  Saund.  286,  n.  9;  Bac.  Ab.  Pleas,  dick  ?'.  Lvon,  11  East,  565;  Amory  v. 

&c.  B.  6;    Cutforthay  v.  Taylor,  1  Ld.  Brodrick,"5  Barn.  &  Aid.  712. 
Raym.  395 ;  Judin  v.  Samuel,  1   N.  R.         -  Duffield  v.  Scott,  3  T.  R.  377. 
.43 ;  Benbridgeu.  Day,  1  Salk.  218 ;  Pow- 


CHAPTER   XIV. 

OF   RULES  WHICH    TEND   TO   PREVENT    PROLIXITY  AND 
DELAY  IN  PLEADING. 

Rule  I.   Theke  must  be  no  Departure  in  Pleading.^ 

A  Departure  takes  Place  when,  in  ant  Pleading,  the 
PARTY  Deserts  the  Ground  that  he  took  in  his  Last  Ante- 
cedent Pleading  and  Resorts  to  another.^ 

"  Each  party,"  says  Lord  Coke,  "  must  take  heed  of  the 
ordering  of  the  matter  of  his  pleading,  lest  his  replication 
depart  from  his  count,  or  his  rejoinder  from  his  bar.  A 
departure  in  pleading  is  said  to  be  when  the  second  plea  con- 
taineth  matter  not  pursuant  to  his  former,  and  which,  fortijieth 
not  the  same."  ^ 

A  departure  obviously  can  never  take  place  till  the  repli- 
cation. 

A  Departure  may  be  either  : 

(1)  In  Point  of  Fact ; 

(2)  In  Point  of  Law. 

(1)  Departure  in  Point  op  Fact. 

Of  departure  in  the  replication  the  following  is  an 

Example :  In  assumpsit  the  plaintiffs,  as  executors,  declared 
on  several  promises  alleged  to  have  been  made  to  the  testator  in 
his  lifetime.  The  defendant  pleaded  that  she  did  not  promise 
within  six  years  before  the  obtaining  of  the  original  writ  of  the 

1  Co.  Litt.  304 ;  Richards  v.  Hodges,  lected  in  Com.  Dig.  Pleader,  F.  7,  F. 

2  Saund.  84;  Dudlow  v.  Watchorn,  16  11 ;  Bac.  Ab.  Pleas,  &c.  L.;   Vin.  Ab. 

East,  39  ;  Tolputt  v.  Wells,  1  M.  &  S.  tit.  Departure ;  1  Arch.  247,  253. 

395;  Fisher  v.  Pirabley,  11  East,  188;  2  Co.  Litt.  304  a;  2  Saund.  84,  n.  1. 

Winstone  v.  Linn,  1  Barn.  &  Cress.  460.  ^  Cq.  Litt.  ubi  supra. 
And  see  the  numerous  authorities  col- 


404  COMMON-LAW    PLEADING. 

plaintiffs.  The  plaintiffs  replied  that,  within  six  years  before 
the  obtaining  of  the  original  writ,  the  letters  testamentary  were 
granted  to  them,  whereby  the  action  accrued  to  them,  the  said 
plaintiffs,  within  six  years.  The  court  held  this  to  be  a  depar- 
ture ;  as  in  the  declaration  they  had  laid  promises  to  the  testator, 
but  in  the  replication  alleged  the  right  of  action  to  accrue  to  them- 
selves as  executors.^  Tliey  ought  to  have  laid  promises  to  them- 
selves, as  executors,  in  the  declaration,  if  they  meant  to  put  their 
action  on  this  ground. 

But  a  departure  does  not  occur  so  frequently  in  the  replica- 
tion as  in  the  rejoinder. 

Examples :  (1)  In  debt  on  a  bond  conditioned  to  perform  an 
award,  so  that  the  same  were  delivered  to  the  defendant  by  a 
certain  time,  the  defendant  pleaded  that  the  arbitrators  did  not 
make  any  award.  The  plaintiff  replied  that  the  arbitrators  did 
make  aa  award  to  such  an  effect,  and  that  the  same  was  tendered 
by  the  proper  time.  The  defendant  rejoined  that  the  award  teas 
not  so  tendered.  On  demurrer,  it  was  objected  that  the  rejoinder 
was  a  departure  from  the  plea  in  bar ;  "  for,  in  the  plea  in  bar, 
the  defendant  says  that  the  arbitrators  made  no  award;  and  now, 
in  his  rejoinder,  he  has  implicitly  confessed  that  the  arbitrators 
have  made  an  axoard.,  but  says  that  it  vjas  not  tendered  according 
to  the  condition ;  which  is  a  plain  departure  :  for  it  is  one  thing 
not  to  make  an  atvard  and  another  thing  not  to  tender  it  when 
made.  And  although  both  these  things  are  necessary  by  the  con- 
dition of  the  bond  to  bind  the  defendant  to  perform  the  award, 
yet  the  defendant  ought  only  to  rely  upon  one  or  the  other  by 
itself,"  &c.  "  But  if  the  truth  had  been  that  although  the  award 
was  made,  yet  it  was  not  tendered  according  to  the  condition, 
the  defendant  should  have  pleaded  so  at  first  in  his  plea,"  &c. 
And  the  court  gave  judgment  accordingly.^ 

(2)  In  debt  on  a  bond  conditioned  to  keep  the  plaintiffs  harm- 
less and  indemnified  from  all  suits,  &c.,  of  one  Thomas  Cook, 
the  defendants  pleaded  that  they  had  kept  the  j^laintffs  harm- 
less,^ &c.  The  plaintiffs  replied  that  Cook  sued  them,  and  so 
the  defendants  had  not  kept  them  harmless,  &c.  The  defend- 
ants rejoined  that  they  had  not  any  notice  of  the  damnification . 
And  the  court  held,  first,  that  the  matter  of  the  rejoinder  was 
bad,   as   the   plaintiffs   were   not    bound   to   give   notice ;    and, 

1  Hickman  v.  Walker,  "Willes,  27.         hoto  they  had  kept  harmless  (1  Saund. 

2  Roberts  v.  Mariett,  2  Saund.  188.       117,  n.  1) ;  but  the  court  held  the  fault 

3  This  plea  was  bad,  for  not  showing    cured  by  pleading  over. 


TO   PREVENT   PEOLIXITY   AND    DELAY   IN   PLEADING.        405 

secondly,  that  the  rejoinder  was  a  departure  from  the  plea  in 
bar;  "for,  in  the  bar,  the  defendants  pleaded  that  they  have 
saved  harmless  the  plaintiffs,  and,  in  the  rejoinder,  confess  that 
they  have  not  saved  harmless,  but  that  they  had  not  notice  of 
the  damnification ;   which  is  a  plain  departure."  ^ 

(3)  In  debt  on  a  bond  conditioned  to  perform  the  covenants 
in  an  indenture  of  lease,  one  of  which  was  that  the  lessee,  at 
every  felling  of  wood,  would  make  a  fence,  the  defendant 
pleaded  that  he  had  not  felled  any  wood,  &c.  The  plaintiff 
replied  that  he  felled  two  acres  of  wood,  but  made  no  fence. 
The  defendant  rejoined  that  he  did  make  a  fence.  This  was 
adjudged  a  departure.'^ 

These,  it  will  be  observed,  are  cases  in  which  the  party 
deserts,  in  point  of  fact,  the  ground  that  he  had  first  taken. 

(2)  Departure  in  Point  of  Law.^ 
But  it  is  also  a  departure  if  he  puts  the  same  facts  on  a  new 
ground  in  point  of  law ;  as  if  he  relies  on  the  effect  of  the 
common  law  in  his  declaration,  and  on  a  custom  in  his  replica- 
tion ;  or  on  the  effect  of  the  common  law  in  his  plea,  and  on  a 
statute  in  his  rejoinder. 

Examples:  (1)  Thus,  where  the  plaintiff  declared  in  covenant 
on  an  indenture  of  apprenticeship,  by  which  the  defendant  was 
to  serve  him  for  seven  years,  and  assigned,  as  breach  of  cove- 
nant, that  the  defendant  departed  within  the  seven  years,  and 
the  defendant  pleaded  infancy,  to  which  the  plaintiff  replied 
that,  by  the  custom  of  London,  infants  may  bind  themselves 
apprentices,  this  was  considered  as  a  departure.* 

(2)  In  trespass,  the  defendant  made  title  to  the  premises, 
pleading  a  demise  for  fifty  years  made  by  the  college  of  R. 
The  plaintiff  replied  that  there  was  another  prior  lease  of  the 
same  premises,  which  had  been  assigned  to  the  defendant,  and 
which  was  unexpired  at  the  time  of  making  the  said  lease  for 
fifty  years ;  and  alleged  a  proviso  in  the  act  of  31  Hen.  VIII. 
c.  13,  avoiding  all  leases  by  the  colleges  to  which  that  act  relates 
made  under  such  circumstances  as  the  lease  last  mentioned.  The 
defendant,  in  his  rejoinder,  pleaded  another  proviso  in  the  statute, 
which  allowed  such  leases  to  be  good  for  twenty-one  years,  if  made 
to  the  same  person,  &c. ;  and  that,  by  virtue  thereof,  the  demise 

1  Cutler  V.  Southern,  1  Saund.  116.      sort  of  departure,  see  Union  Pacific  K, 

2  Dy.  253  b.  R.  Co.  v.  Wyler,  158  U.  S.  285. 
*  For  a  recent  case  involving  this        *  Mole  v.  Wallis,  1  Lev.  81. 


406  COMMON-LAW  PLEADING. 

stated  in  his  plea  was  available  for  twenty-one  years  at  least. 
The  judges  held  the  rejoinder  to  be  a  departure  from  the  plea ; 
"for,  in  the  bar,  he  pleads  a  lease  of  fifty  years,  and,  in  the  re- 
joinder, he  concludes  upon  a  lease  for  twenty-one  years,"  &c. 
And  they  observed  that  "  the  defendant  might  have  shown  the 
statute  and  the  whole  matter  at  first."  ^ 

To  show  more  distinctly  the  nature  of  a  departure,  it  may 
be  useful,  on  the  other  hand,  to  give  some  examples  of  cases 
that  have  been  held  not  to  fall  within  that  objection. 

Examples :  (1)  In  debt  on  a  bond  conditioned  to  perform 
covenants,  one  of  which  was  that  the  defendant  should  account 
for  all  sums  of  money  that  he  should  receive,  the  defendant 
pleaded  performance.  The  plaintiff  replied  that  £26  came  to  his 
hands  for  which  he  had  not  accounted.  The  defendant  rejoined 
that  he  accounted  modo  sequente  (in  manner  following),  viz.,  that 
certain  malefactors  broke  into  his  counting-house  and  stole  the 
money,  of  which  fact  he  acquainted  the  plaintiff.  And  it  was 
argued  on  demurrer  "  that  the  rejoinder  is  a  departure ;  for  ful- 
filling a  covenant  to  account  can  not  be  intended  but  by  actual 
accounting;  whereas  the  rejoinder  does  not  show  an  account,  but 
an  excuse  for  not  accounting."  But  the  court  held  that  showing 
he  was  robbed  is  giving  an  account,  and  therefore  there  was  no 
departure.^ 

(2)  In  debt  on  a  bond  conditioned  to  indemnify  the  plaintiff 
from  all  tonnage  of  certain  coals  due  to  W.  B.,  the  defendant 
pleaded  non  davmificatus  ;  to  which  the  plaintiff  replied  that  for 
£5  of  tonnage  of  coals  due  to  W.  B.  his  barge  was  distrained; 
and  the  defendant  rejoined  that  no  tonnage  was  due  to  W.  B.  for 
the  coals.  To  this  the  plaintiff  demurred,  "  supposing  the  rejoinder 
to  be  a  departure  from  the  plea ;  for  the  defendant  having  pleaded 
generally  that  the  plaintiff  was  not  damnified,  and  the  plaintiff 
having  assigned  a  breach,  the  matter  of  the  rejoinder  is  only  by 
way  of  excuse,  confessing  and  avoiding  the  breach ;  which  ought 
to  have  been  done  at  first,  and  not  after  a  general  plea  of  in- 
demnity. On  the  other  side,  it  was  insisted  that  it  was  not 
necessary  for  the  defendant  to  set  out  all  his  case  at  first,  and 
it  suffices  that  his  bar  is  supported  and  strengthened  by  his 
rejoinder.     And  of  this  opinion  was  the  court."  ^ 

1  Fulmerston  v.  Steward,  Plowd.  ^  Owen  v.  Reynolds,  Fort.  341 ;  cited 
102  ;  s.  c.  Dy.  102  b.  Bac.  Ab.  Pleas,  &c.  452,  5th  ed. 

2  Vere  v.  Smith,  2  Lev.  5 ;  s.   c.  1 
Vent.  121. 


TO   PREVENT   PROLIXITY  AND   DELAY   IN   PLEADING.         407 

(3)  In  an  action  of  trespass  on  the  case,  for  illegally  taking 
toll,  the  plaintiff,  in  his  declaration,  set  forth  a  charter  of  26 
Hen.  VI.,  discharging  him  from  toll.  The  defendant  pleaded  a 
statute  resuming  the  liberties  granted  by  Hen.  VI.  The  i^laintiff 
replied  that  by  the  statute  4  Hen.  VII.  such  liberties  were 
revived.     And  this  was  held  to  be  no  departure.^ 

(4)  In  an  action  of  debt  on  a  bond  conditioned  for  the  per- 
formance of  an  award,  the  defendant  pleaded  that  the  arbitrators 
did  not  make  any  award:  the  plaintiff  replied  that  they  duly 
made  their  award,  setting  part  of  it  forth ;  and  the  defendant,  in 
his  rejoinder,  set  forth  the  whole  award  verbatim ;  by  which  it 
appeared  that  the  award  was  bad  iii  law,  being  made  as  to  mat- 
ters not  within  the  submission.  To  this  rejoinder  the  plaintiff 
demurred,  on  the  ground  that  it  was  a  departure  from  the  plea ; 
for  by  the  plea  it  had  been  alleged  that  there  was  no  award, 
which  meant  no  award  in  fact ;  but  by  the  rejoinder  it  appeared 
that  there  had  been  an  award  in  fact.  The  court,  however,  held 
that  there  was  no  departure ;  that  the  plea  of  no  award  meant  no 
legal  and  valid  award,  according  to  the  submission;  and  that 
consequently  the  rejoinder,  in  setting  the  award  forth,  and  show- 
ing that  it  was  not  conformable  to  the  submission,  maintained 
the  plea.2 

In  ALL  Cases  where  the  Variance  between  the  Former 
AND  the  Latter  Pleading  is  on  a  Point  not  Material,  there 
is  no  Departure. 

Example :  In  assumpsit,  if  the  declaration,  in  a  case  where 
the  time  is  not  material,  state  a  promise  to  have  been  made  on  a 
given  day  ten  years  ago,  and  the  defendant  plead  that  he  did  not 
promise  within  six  years,  the  plaintiff  may  reply  that  the  defend- 
ant did  promise  within  six  years  without  a  departure,^  because  the 
time  laid  in  the  declaration  was  immaterial. 

The  rule  against  departure  is  evidently  necessary  to  prevent 
the  retardation  of  the  issue.  For  while  the  parties  are  respec- 
tively confined  to  the  grounds  they  have  first  taken  in  their 
declaration  and  plea,  the  process  of  pleading  will,  as  formerly 

1  Wood  V.  Hawkshead,  Yelv.  13.  1  Sid.  180 ;  s.  c.  1  Ld.'  Raym.  94 ;  Hard- 

2  Fisher  v.  Pimbley,  11  East,  188;  ing  v.  Holmes,  1  Wils.  122;  Praed  v. 
and  see  Dudlow  v.  Watchorn,  16  East,  Duchess  of  Cumberland,  4  T.  R.  585; 
29      N.   B.   The   first    of    these    cases  2  II.  Bl.  280. 

seems,  in  effect,  to  have  overruled  some         ^  Lee  v.  Rogers,  1  Lev.  110;  Cole  v. 
former  decisions.     See  Morgan  v.  Man,    Hawkins,  10  Mod.  348,  S.  P. 


408  COMMON-LAW   PLEADING. 

demonstrated,  exhaust,  after  a  few  alternations  of  statement,  the 
ivhole  facts  involved  in  the  cause,  and  thereby  develop  the 
question  in  dispute.  But  if  a  new  ground  be  taken  in  any 
part  of  the  series,  a  new  state  of  facts  is  introduced,  and  the 
result  is  consequently  postponed.  Besides,  if  one  departure 
were  allowed,  the  parties  might,  on  the  same  principle,  shift 
their  ground  as  often  as  they  pleased  ;  and  an  almost  indefi- 
nite length  of  altercation  might,  in  some  cases,  be  the 
consequence.^ 

Rule  II.      Where  a  Plea  amounts  to  the  General  Issue   ^ 
IT  should  be  so  pleaded.2 

It  has  been  already  explained,  that  in  most  actions  there  is 
an  appropriate  form  of  plea,  called  the  general  issue,  fixed  by 
ancient  usage  as  the  proper  method  of  traversing  the  declara- 
tion, when  the  pleader  means  to  deny  the  whole  or  the  prin- 
cipal part  of  its  allegations.  The  meaning  of  the  present  rule^ 
is,  that  if,  instead  of  traversing  the  declaration  in  this  form, 
the  party  pleads  in  a  more  special  way  matter  which  is  construc- 
tively and  in  effect  the  same  as  the  general  issue,  such  plea  will 
be  bad,  and  the  general  issue  ought  to  be  substituted. 

Examples :  (1)  To  a  declaration  in  trespass  for  entering  the 
plaintiff's  garden,  the  defendant  pleaded  ?^Aa^  the  plaintiff  had  no 
such  garden.  This  was  ruled  to  be  "  no  plea,  for  it  amounts  to 
nothing  more  than  not  guilty  ;  for  if  he  had  no  such  garden,  then 
the  defendant  is  not  guilty."  So  the  defendant  withdrew  his  plea, 
and  said  not  guilty} 

(2)  In  trespass  for  depasturing  the  plaintiff's  herbage,  non 
depascit  herbas  is  no  plea :  it  should  be,  not  guilty.^ 

(3)  In  debt  for  the  price  of  a  horse  sold,  that  the  defendant 
did  not  buy  is  no  plea,  for  it  amounts  to  nil  debet. * 

(4)  In  trespass  for  entering  the  plaintiff's  house,  and  keep- 
ing possession  thereof  for  a  certain  time,  the  defendant  pleaded 

1  See  2  Saund.  84  a,  n.  1.  Anon.  12  Mod.  537;  Saunders's  Case, 

2  Co.  Litt.  303  b ;  Doct.  &  Stud.  271,  ibid.  513 ;  Hallet  v.  Byrt,  5  Mod.  252. 
272;    Com.  Dig.  Pleajer,  E.  14;   Bac.         3  iq  Hen.  VI.  16.  ' 
Ab.    Fleas,    &c.   370-376,  5th  ed. ;    10         *  Doct.  PI.  42,  cites  22  Hen.  ^^.  37. 
Hen.  VI.  16  ;  22  Hen.  VI.  37  ;   HoUer         ^  vin.  Ab.  Certainty  in  Pleadings, 
V.  Bqsh,  Salk.  394 ;  Birch  v.  Wilson,  2  E.  15,  cites  Bro.  Traverse,  &c.  pL  275; 
Mod.  277;  Lynnet  v.  Wood,  Cro.'Car.  22  Edw.  IV.  29. 
157;  Warner  v.  Wainsford,  Hob.  127; 


TO   PREVENT   PROLIXITY   AND   DELAY   IN   PLEADING,         409 

that  J.  S.  was  seised  in  fee  thereof,  and,  being  so  seised,  gave 
license  to  the  defendant  to  enter  into  and  possess  the  house  till 
he  should  give  him  notice  to  leave  it;  that  thereupon  the  de- 
fendant entered  and  kept  the  house  for  the  time  mentioned  in 
the  declaration,  and  had  not  any  notice  to  leave  it  all  the  time. 
The  plaintiff  demurred  specially,  on  the  ground  that  this  plea 
amounted  to  the  general  issue,  not  guilty ;  and  the  court  gave 
judgment,  on  that  ground,  for  the  plaintiff.^ 

(5)  In  an  action  of  trover  for  divers  loads  of  corn,  the  de- 
fendant in  his  plea  entitled  himself  to  them  as  tithes  severed. 
The  plaintiff  demurred  specially,  on  the  ground  that  the  plea 
"amounted  but  to  not  guilty  ;  "  and  the  court  gave  judgment  for 
the  plaintiff.^ 

(6)  In  trespass  for  breaking  and  entering  the  plaintiff's  close, 
if  the  defendant  plead  a  demise  to  him  by  the  plaintiff,  by  virtue 
whereof  he,  the  defendant,  entered  and  was  possessed,  this  is  bad, 
as  amounting  to  the  general  issue,  not  guilty  fi 

(7)  In  debt  on  a  bond,  the  defendant  by  his  plea  confessed 
the  bond,  but  said  that  it  was  executed  to  another  person,  and 
not  to  the  plaintiff  j  this  was  bad,  as  amounting  to  non  est 
factxim.^ 

These  examples  show  that  a  special  plea,  thus  improperly 
substituted  for  the  general  issue,  may  be  sometimes  in  a  nega- 
tive^ sometimes  in  an  affirmative  form.  When  in  the  negative, 
its  argumentativeness  will  often  serve  as  an  additional  test  of 
its  faulty  quality.  Thus,  the  plea  in  the  first  example,  "  that 
the  plaintiff  had  no  such  garden^''  is  evidently  but  an  argu- 
mentative allegation  that  the  defendant  did  not  commit, 
because  he  could  not  have  committed,  the  trespass.  This, 
however,  does  not  universally  hold ;  for,  in  the  second  and 
third  examples,  the  allegations  that  the  defendant  '■'■  did  not 
depasture^''  and  "  did  not  huy^''  seem  to  be  in  as  direct  a  form 
of  denial  as  that  of  not  guilty.  If  the  plea  be  in  the  affirma- 
tive, the  following  considerations  will  always  tend  to  detect 
the  improper  construction.  If  a  good  plea,  it  must  (as  formerly 
shown)  be  taken  either  as  a  traverse,  or  as  in  confession  and 
avoidance.     Now,  taken  as  a  traverse,  such  a  plea  is  clearly 

1  Saunders's  Case,  12  Mod.  513.  *  Gifford  i;.  Perkins,  1  Sid.  450;  8.  c. 

2  Lyunet  v.  Wood,  Cro.  Car.  157,  1  Vent.  77. 
'  Jaques's  Case,  Sty.  355. 


410  COMMON-LAW   PLEADING. 

open  to  the  objection  of  argumentativeness  ;  for  two  affirma- 
tives make  an  argumentative  issue.  Thus,  in  the  fourth 
example,  the  allegations  show  that  the  house  in  question  was 
the  house  of  J.  S. ;  and  they  therefore  deny  argumentatively 
that  it  was  the  house  of  the  plaintiff,  as  stated  in  the  declara- 
tion. On  the  other  hand,  if  a  plea  of  this  kind  be  intended 
by  way  of  confession  and  avoidance,  it  is  bad /or  want  of  color ^ 
for  it  admits  no  apparent  right  in  the  plaintiff.  Thus,  in  the 
same  example,  if  it  be  true  that  J.  S.  was  seised  in  fee,  and 
gave  license  to  the  defendant  to  enter,  who  entered  accord- 
ingly, this  excludes  all  title  of  possession  in  the  plaintiff ;  and 
without  such  a  title  he  has  no  color  to  maintain  an  action  of 
trespass.^  In  the  example  where  the  defendant  pleads  the 
plaintiff's  own  demise,  the  same  observation  applies  ;  for  if 
the  plaintiff  demised  to  the  defendant,  who  entered  accord- 
ingly, the  plaintiff  would  then  cease  to  have  any  title  of  pos- 
session ;  and  he  consequently  has  no  color  to  support  an 
action  of  trespass. 

Effect  of  giving  Express  Color. 

The  fault  of  wanting  color  being  in  this  manner  connected 
with  that  of  amountitig  to  the  general  issue,  it  is  accordingly 
held  that  a  plea  will  be  saved  from  the  latter  fault  where 
express  color  is  given.^  And  where  sufficient  implied  color  is 
given,  a  plea  will  never  be  open  to  this  kind  of  objection. 
It  is  further  to  be  observed  that,  where  sufficient  implied 
color  is  given,  the  plea  will  be  equally  clear  of  this  objection, 
even  though  it  consist  of  matter  which  might,  hy  a  relaxation 
of  practice,  he  given  in  evidence  under  the  general  issue.  The 
relaxation  here  referred  to  is  that  formerly  noticed,  by  which 
defendants  are  allowed,  in  certain  actions,  to  prove,  under  this 
issue,  matters  in  the  nature  of  confession  and  avoidance  ;  as, 
for  example,  in  assumpsit,  a  release  or  payment.  In  such 
cases  the  plaintiff  (as  formerly  stated),  though  allowed,  is  not 

1  See  Holler  v.  Bush,  Salk.  394.  resorted  to  in  order  that  this  rule  miglit 

2  Anou.    12   jMod.   537  ;    Saunders's  be  evaded,  and  that  an  argumentative 
Case,  ibid.  513  ;  Lynnet  v.  Wood,  Cro.  traverse  might  be  pleaded  as  a  plea  by 
Car.  157  ;  Birch  v.  Wilson,  2  Mod.  274.  way  of  coufession  and  avoidance. 
Indeed,  the  fiction  of  express  color  was 


TO   PREVENT   PROLIXITY   AND   DELAY  IN   PLEADING.         411 

obliged  to  plead  non  assumpsit,  but  may,  if  he  pleases,  plead 
specially  the  payment  or  release  ;  and  if  he  does,  such  plea  is 
not  open  to  the  objection  that  it  amounts  to  the  general 
issue.^ 

This  Rule  not  absolute. 

It  is  said  that  the  court  is  not  bound  to  allow  this  objection, 
but  that  it  is  in  its  discretion  to  allow  a  special  plea,  amount- 
ing to  the  general  issue,  if  it  involve  such  matter  of  law  as 
might  be  unfit  for  the  decision  of  a  jury.^  It  is  also  said  that 
as  the  court  has  such  discretion,  the  proper  method  of  taking 
advantage  of  this  fault  is  not  by  demurrer,  but  by  motion  to 
the  court  to  set  aside  the  plea  and  enter  the  general  issue 
instead  of  it.^  It  appears  from  the  books,  however,  that  the 
objection  has  frequently  been  allowed  on  demurrer. 

As  a  plea  amounting  to  the  general  issue  is  usually  open 
also  to  the  objection  of  being  argumentative,  or  that  of  want- 
ing color,  we  sometimes  find  the  rule  in  question  discussed 
as  if  it  were  founded  entirely  upon  those  objections.  This, 
however,  does  not  seem  to  be  a  sufficiently  wide  foundation 
for  the  rule  ;  for  there  are  instances  of  pleas  which  are  faulty, 
as  amounting  to  the  general  issue,  which  yet  do  not  (as 
already  observed)  seem  fairly  open  to  the  objection  of  argu- 
mentativeness, and  which,  on  the  other  hand,  being  of  the 
negative  kind  or  by  way  of  traverse,  require  no  color.  Besides, 
there  is  express  authority  for  holding  that  the  true  object  of 
this  rule  is  to  avoid  prolixity,  and  that  it  is  therefore  properly 
classed  under  the  present  section.  For  it  is  laid  down  that 
"  the  reason  of  pressing  a  general  issue  is  not  for  insuffi- 
ciency of  the  plea,  but  not  to  make  long  records  when  there 
is  no  cause."  ^ 

1  Holler  V.  Bush,  Salk.  394  ;  Hussey  »  "Warner  v.  Wainsford,  Hob.  127  ; 
V.  Jacob,  Carth.  356 ;  Carr  v.  Hinchliff,    Ward  &  Blunt's  Case,  1  Leou.  178. 

4  Barn.  &  Cress.  547.  *  Warner    v.  Wainsford,  ubi  supra; 

2  Bac.  Ab.  Pleas,  &c.  374,  5th  ed. ;    see  also  Com.  Dig.  Pleader,  E.  13. 
Birch  V.  Wilson,  2  Mod.  274;  Carr  v. 

Hinchliff,  ubi  supra. 


412  COMMON-LAW  PLEADING. 

Rule  III.     Surplusage  is  to  be  Avoided.^ 

Surplusage  is  here  taken  in  its  large  sense,  as  including 
unnecessary  matter  of  whatever  description.^ 

To  combine  with  the  Requisite  Certainty  and  Precision 
the  Greatest  Possible  Brevity  is  now  justly  considered 
as  the  Perfection  of  Pleading. 

This  principle,  however,  has  not  been  kept  uniformly  k 
view  at  every  era  of  the  science.  For  although  it  appears  to 
have  prevailed  at  the  earliest  periods,  it  seems  to  have  been 
nearly  forgotten  during  a  subsequent  interval  of  our  legal 
history ;  ^  and  it  is  to  the  wisdom  of  modern  judges  that  it 
owes  its  revival  and  restoration. 

(1)  Omission  of  Matter  wholly  Foreign. 

The  rule  as  to  avoiding  surplusage  may  be  considered,  first, 
as  prescribing  the  omission  of  matter  loholly  foreign. 

Examjile :  When  a  plaintiff,  suing  a  defendant  upon  one  of 
the  covenants  in  a  long  deed,  sets  out,  in  his  declaration,  not  only 
the  covenant  on  which  he  sues,  but  all  the  other  covenants,  though 
relating  to  matter  wholly  irrelevant  to  the  cause,  he  violates  this 
rule.* 

(2)  Omission  of  Matter  not  required  to  be  stated. 

The  rule  also  prescribes  the  omission  of  matter  which, 
though  not  wholly  foreign,  does  not  require  to  he  stated.  Any 
matters  will  fall  within  this  description  which,  under  the  vari- 
ous rules  enumerated  in  a  former  section  as  tending  to  limit 
or  qualify  the  degree  of  certainty,  it  is  unnecessary  to  allege ; 
for  example,  matter  of  mere  evidence,  matter  of  law,  or  other 
things  which  the  court  officially  notices,  matter  coming  more 
properly  from  the  other  side,  matter  necessarily  implied,  etc. 


1  Bristow  V.  Wright,  Doug.  667  ;  1         3  ggg  tjjg  remarks  of  Sir  M.  Hale, 
Saund.  233,  n.  2  ;  Yates  v.  Carlisle,   1  Hist,  of  Com.  Law,  ch.  vii.,  riii. 

Bl.  Rep.  270.  *  Dundass  v.  Lord  Weymouth,  Cowp. 

2  In   its  more  strict    and    confined  665 ;  Price  v.  Fletcher,  ibid.  727 ;  Phil- 
meaning,  it  imports  matter  wholly  for-  lips  v.  Fielding,  2  H.  Bl.  131. 

eign  and  irrelevant. 


to  prevent  prolixity  and  delay  in  pleading.      413 

(3)     Brevity  in  Manner  of  Statement. 

The  rule  prescribes,  generally,  the  cultivation  of  brevity, 
or  avoidance  of  unnecessary  prolixity,  in  the  manner  of  state- 
ment. A  terse  style  of  allegation,  involving  a  strict  retrench- 
ment of  unnecessary  words,  is  the  aim  of  the  best  practition- 
ers in  pleading,  and  is  considered  as  indicative  of  a  good 
school. 

Remedy  for  Violation  of  this  Rule. 

Surplusage  is  not  a  subject  for  demurrer  ;  the  maxim  being 
that  utile^  'per  inutile,  non  vitiatur}  But  when  any  flagrant 
fault  of  this  kind  occurs  and  is  brought  to  the  notice  of  the 
court,  it  is  visited  with  the  censure  of  the  judges.^  They  have 
also,  in  such  cases,  on  motion,  referred  the  pleadings  to  the 
master,  that  he  might  strike  out  such  matter  as  is  redundant 
and  capable  of  being  omitted  without  injury  to  the  material 
averments ;  and,  in  a  clear  case,  will  themselves  direct  such 
m.atter  to  he  struck  out.  And  the  party  offending  will  some- 
times have  to  pay  the  costs  of  the  application.^ 

Danger  arising  from  Surplusage. 

Though  traverse  can  not  be  taken  (as  already  shown)  on 
an  immaterial  allegation,  yet  it  often  happens  that  when 
material  matter  is  alleged,  with  an  unnecessary  detail  of  cir- 
cumstances, the  essential  and  non-essential  parts  of  the  state- 
ment are,  in  their  nature,  so  connected  as  to  be  incapable  ^of 
separation ;  and  the  opposite  party  is  therefore  entitled  to 
include,  under  his  traverse,  the  whole  matter  alleged.  The 
consequence  evidently  is,  that  the  party  who  has  pleaded  with 
such  unnecessary  particularity  has  to  sustain  an  increased 
burden  of  proof,  and  incurs  greater  danger  of  failure  at  the 
trial. 

1  Co.  Litt.  303  b.  8th  ed. ;     Nichol    v.   Wilton,   1     Chit. 

2  Yates  V.  Carlisle,  I  Bl.  Rep.  270 ;  Eep.  449,  450 ;  Carmack  v.  Gundry,  3 
Price  V.  Fletcher,  Cowp.  727.  Barn.  &  Aid.  272  ;  Brindley  v.  Dennett, 

8  Price  V.  Fletcher,  ubi  supra;  Brig-    2  Bing.  184. 
tow  V.  Wright,  Doug.  667  ;  1  Tidd,  667, 


414  COMMON-LAW   PLEADING. 

Most  of  the  principal  rules  of  pleading  have  now  been 
classed  with  reference  to  certain  common  objects  which  each 
class  or  set  of  rules  is  conceived  to  contemplate,  and  have 
been  explained  and  illustrated  in  their  connection  with  these 
objects  and  with  each  other.  But  there  still  remain  certain 
rules,  also  of  a  principal  or  primary  character,  which  have 
been  found  not  to  be  reducible  within  this  principle  of  arrange- 
ment, being,  with  respect  to  their  objects,  of  a  miscellaneous 
and  unconnected  kind.  These  will  form  the  subject  of  the 
following  chapter. 


CHAPTER    XV. 

OF  CERTAIN  MISCELLANEOUS  RULES. 

These  rules  relate  either  to  the  declaration^  the  plea,  or 
pleadings  in  general,  and  shall  be  considered  in  the  order 
thus  indicated. 

Rule  I.    The  Declaration  should  commence  with  a  Re- 
cital OP  THE  Original  Writ.i 

The  commencement  of  the  declaration,  in  personal  actions, 
generally  consists  of  a  short  recital  of  the  original  writ. 
Accordingly,  where  the  writ  directs  the  sheriff  to  summon  the 
defendant,  as  in  debt  and  covenant,  the  declaration  begins, 
"  C.  D.  was  summoned  to  answer  A.  B.  of  a  plea^^  <fec. 

On  the  other  hand,  where  by  the  writ  the  defendant  is 
required  to  be  put  hy  gages  and  safe  pledges,  as  in  trespass 
and  trespass  on  the  case,  the  commencement  is,  "  C.  D.  was 
attached  to  answer  A.  B.  of  a  plea,^'  &c.  The  declaration 
then  proceeds  further  to  recite  the  writ,  by  showing  the 
nature  of  the  particular  requisition  or  exigency  of  that  instru- 
ment ;  as,  for  example  (in  debt),  "  of  a  plea  that  he  render  to 
the  said  A.  B.  the  sum  of j9omwc?s,"  &c.  In  debt,  cove- 
nant, detinue,  and  trespass,  nearly  the  whole  original  writ  is 
recited  ;  but  not  in  trespass  on  the  case.  The  course  was 
formerly  the  same  in  the  latter  action  also ;  but,  as  this  led  to 
an  inconvenient  prolixity,  it  was  by  rule  of  court  ^  provided, 
that  in  that  and  some  other  actions  it  shall  be  sufficient  to 
mention  generally  the  nature  of  the  action ;  thus  :  "  a  plea  of 
trespass  upon  the  case,^'  &c. ;  and  such  summary  form  has 
accordingly  been  since  used. 

1  Com.  Dig.  Pleader,  C.  12.  «  i  xidd,  435,  8th  ed. ;  1  Saund.  318,  n.  3. 


416  COMMON-LAW   PLEADING. 

In  real  and  mixed  actions,  the  writ  is  generally  not  so  for- 
mally recited.  Thus,  in  the  writ  of  right  the  count  begins, 
"  ^.  B.  demands  against  C.  i).,  ^c.  ;"  and  the  case  is  the 
same  in  formedon  and  dower.  It  will  be  observed,  however, 
that  this  commencement  generally  comprises  a  repetition  of  the 
tenor  of  the  writ ;  and  in  some  actions,  as  in  quare  impedit, 
the  writ  is  as  formally  recited  as  in  actions  personal. 

The  recital  of  the  writ  is  a  form  which  the  declaration  has 
borrowed  from  the  style  in  which  it  was  entered  on  record; 
for  the  declaration  itself,  when  actually  pronounced  in  court, 
usually  began  with  the  words,  Ceo  vous  monstre  (this  shows 
to  you),  etc. 

Though  the  writ,  as  recited  at  the  commencement  of  the 
declaration,  appear  to  be  erroneous,  yet  that  is  no  ground  for 
demurrer  to  the  declaration ;  for  the  court  will  not  judge  of 
any  defect  in  the  original  writ  without  examination  of  the 
instrument  itself.^ 

The  rule  under  consideration  of  course  does  not  apply 
where  the  proceeding  is  by  bill ;  but  in  that  case  also  the 
declaration  has  its  proper  formal  commencement. 

The  declaration  by  bill  commences  with  the  following  for- 
mula :  "  A.  B.  complains  of  O.  D.,  ^c. ; "  and  in  the  King's 
Bench  usually  proceeds  to  allege  that  the  defendant  is  "  in 
the  custody  of  the  marshal  of  the  3Iarshalsea  of  our  lord  the 
now  king,  before  the  king  himself;  "  ^  i.  e.,  that  he  is  a  pris- 
oner of  the  court ;  but,  in  case  of  an  action  against  an  attorney 
or  ofhcer  of  the  court,  it  alleges  the  defendant  to  be  such  attor- 
ney or  officer,  without  stating  him  to  be  in  custody,  etc.  In 
the  Common  Pleas,  the  capacity  of  the  defendant,  as  attorney 
or  officer,  is  in  a  similar  manner  alleged ;  and  in  the  Ex- 
chequer, the  declaration  commences  by  describing  the  plaintiff 
as  "  a  debtor  to  our  sovereign  lord  the  kingy  The  meaning 
of  these  formulce  has  been  explained  in  the  remarks  upon 
"  process." 

1  Com.  Dig.  Pleader,  C.  12 ;  1  Saund.         2  Com.  Dig.  Pleader,  C.  8. 
318,  n.  3  ;  Helliot  v.  Selby,  Salk.  701. 


OF   CERTAIN   MISCELLANEOUS   RULES.  417 

Rule  II.     The  Declaration  must  be  conformable  to  the 

Original  Writ.i 

This  is  a  rule  of  high  antiquity,  being  laid  down  by  Bracton,^ 
who  wrote  when  the  system  of  pleading  was  in  a  very  rude 
and  imperfect  state. 

Examples :  (1)  In  detinue,  where  the  writ  stated  the  value 
of  the  goods  which  were  the  subject  of  action  to  be  £20,  and 
the  declaration  alleged  £40,  the  variance  was,  in  an  old  case, 
considered  as  a  ground  for  reversing  the  judgment  upon  writ  of 
error.' 

(2)  In  trespass,  where  the  writ  charged  the  defendant  with 
breaking  the  close  of  the  plaintiff,  and  the  declaration  with 
breaking  his  closes,  the  decision  was  the  same.* 

The  rule  is  to  be  taken,  however,  subject  to  this  qualifica- 
tion :  that  the  declaration  generally  may,  and  does,  so  far 
vary  from  the  writ,  that  (as  has  been  seen)  it  states  the  cause 
of  action  more  specially.^ 

Though  it  has  been  thought  desirable  to  notice  this  rule, 
it  is,  at  the  same  time,  to  be  observed  that  it  has  lost  much  of 
its  practical  importance,  as  it  can  rarely  now  be  enforced. 
For,  if  the  declaration  varied  from  the  original,  the  only 
modes  of  objecting  to  the  variance  (unless  the  fault  happened 
to  appear  by  the  recital  in  the  commencement  of  the  declara- 
tion) were  by  plea  in  abatement  or  by  writ  of  error.^  But  by 
a  change  of  practice  already  explained,  a  plea  in  abatement, 
in  respect  of  such  variance,  can  now  no  longer  be  pleaded ; 
and,  by  the  statutes  oi  jeofails  and  amendments,  the  objection 
can  not  now  be  taken  by  way  of  writ  of  error  after  verdict ; 
nor,  if  the  variance  be  in  a  matter  of  form  only,  can  it  be 
taken  after  judgment  by  confession,  nil  dicit,  or  nan  sum  infor- 
matusJ  However,  the  effect  of  the  rule  is  still  felt  in  plead- 
ing ;  for  its  long  and  ancient  observance  had  fixed  the  frame 
and  language  of  the  declaration  in  conformity  with  the  original 

1  Com.  Dig.  Pleader,  C.   13 ;   Bac.         »  Com.     Dig.     Abatement,     G.     8, 
Ab.  Pleas,  &c.,  B.  4;  Co.  Litt.  303  a;    Pleader,  C.  15;  Co.  Litt.  303  b. 
Bract.  431  a,  43.5  b.  •*  i  Saund.  318,  n.  3. 

2  Bract.,  iibi  supra.  "^  5  Geo.  I.  c.  13 ;  21  Jac.  I.  c.  13 ;  4 
8  Young  V.  Watson,  Cro.  Eliz.  308.  Ann.  c.  16.  See  2  Tidd,  958,  959,  8th 
*  Edward  v.  Watkin,  ihid.  185.              ed. ;  1  Saund.,  ubi  supra. 

27 


418  COMMON-LAW   PLEADING. 

writ  in  each  form  of  action  ;  and,  by  a  rule  which  has  already 
been  considered,  to  depart  from  the  known  and  established 
tenor  of  pleadings  is  a  fault ;  consequently  a  declaration  must 
still  be  framed  in  conformity  with  the  language  of  the  original 
writ  appropriate  to  the  form  of  action,  as  much  as  when  a 
variance  from  the  writ  actually  sued  out  might  have  become 
the  subject  of  a  plea  in  abatement. 

In  proceedings  by  hill,  the  rule  in  question  is,  of  course, 
inapplicable ;  yet,  even  in  these,  the  declaration  pursues  the 
same  forms  of  expression  as  if  founded  on  an  original  writ  in 
the  same  form  of  action.  Thus,  the  declaration  in  debt  by 
bill  is  worded  exactly  in  the  same  manner  as  the  declaration 
in  debt  by  original,  the  formal  commencement  only  excepted  ; 
and  the  case  is  the  same  in  all  other  actions. 

tRuLE  III.     The   Declaration   should,  in  Conclusion,  lay 
Damages,  and  allege  Production  of  Suit. 
(1)  The  declaration  must  lay  damages.^ 

In  ^personal  and  mixed  actions  ^  the  declaration  must  allege, 
in  conclusion,  that  the  injury  is  to  the  damage  of  the  plaintiff, 
and  must  specify  the  amount  of  that  damage.^  In  personal 
actions,  there  is  the  distinction  formerly  explained  between 
actions  that  sound  in  damages  and  those  that  do  not ;  but  in 
either  of  these  cases  it  is  equally  the  practice  to  lay  damages. 
There  is,  however,  this  difference :  that  in  the  former  case 
damages  are  the  main  object  of  the  suit,  and  are,  therefore, 
ahvays  laid  high  enough  to  cover  the  whole  demand  ;  but  in  the 
latter,  the  liquidated  debt  or  the  chattel  demanded  being  the 
main  object,  damages  are  claimed  in  respect  of  the  detention 
only  of  such  debt  or  chattel,  and  are,  therefore,  usually  laid  at 
a  small  sum. 

The  plaintiff  can  not  recover  greater  damages  than 
he  has  laid  in  the  conclusion  of  his  declaration.* 

\  The  student  should  bear  in  mind  ^  But  penal  actions  are  an  exception, 
the    difference    between    (jeneral    and         ^  Com.  Dig.  Pleader,  C.  84  ;  Robert 

special  damages ;  the  latter  must  ahvays  Pilf  ord's  Case,  1 0  Co.  Rep.  116b,117a,  b. 
be    alleged    specially.      Chit.   PI.   346,  *  Com.  Dig.  Pleader,   C.  84;   Vin. 

347.    (See  also  any  standard  treatise  on  Ab.    Damages,    R. ;    Robert   Pilford's 

"  Torts,"  su6  DOC.  "  special  damages." )  Case,  ubi  supra.    But  if  an  excess  in 


OF    CERTAIN    MISCELLANEOUS   RULES.  419 

In  real  actions,  no  damages  are  to  be  laid  ;  because,  in 
these,  the  demand  is  specifically  for  the  land  withheld,  and 
damages  are  in  no  degree  the  object  of  suit, 

(2)  The  declaration  should  also  conclude  with  the 
production  of  suit. 

This  applies  to  actions  of  all  classes  —  real,  personal,  and 
mixed. 

In  ancient  times,  as  has  been  seen,  the  plaintiff  was  required 
to  establish  the  truth  of  his  declaration,  in  the  first  instance, 
and  before  it  was  called  into  question  upon  the  pleading,  by 
the  simultaneous  production  of  his  secta,  that  is,  a  number  of 
persons  prepared  to  confirm  his  allegations,^  The  practice  of 
thus  producing  a  seeta  gave  rise  to  the  very  ancient  formula, 
almost  invariably  used  at  the  conclusion  of  a  declaration  as 
entered  on  record  :  et  inde  producit  sectam  ;  ^  and  though  the 
actual  production  has  for  many  centuries  fallen  into  disuse, 
the  formula  still  remains.^  Accordingly,  all  declarations, 
except  the  count  on  a  writ  of  right  and  in  dower,  constantly 
conclude  thus :  "  And  therefore  he  brings  his  suit,  ^c."  The 
count  on  a  writ  of  right  did  not,  in  ancient  times,  conclude 
with  the  ordinary  production  of  suit,  but  with  the  following 
formula,  peculiar  to  itself  :  "  et  quod  tale  sit  jus  suum  offert 
disrationare  per  corpus  talis  liberi  hominis''''  (and  that  his  right 
is  such  he  offers  to  dereign  by  the  body  of  a  certain  free-man), 
&c.,*  and  it  concludes  at  the  present  day  with  an  abbreviated 
translation  of  the  same  phrase  :  "  And  that  such  is  his  right,  he 

the   verdict    be    not    discovered    until  ing  to  the  coiart  the  testimony  of  the  wit- 
after  the  jury  has  been  discharged,  ref-  nesses  or  followers."    (Gilb.  C.  P.  48.) 
erence    may   be    had    to   the   writ,   in         2  gee  the  entries  in  the  Placitorum 
order  to  sustain  the  proceedings,  and  if  Abbreviatio,  passim,  temp.  Ric.  I.,  Edw. 
the   damages  found  by  the  verdict  do  //. 

not  exceed  those  laid  in  the  writ,  the         ^  As  early  as  7  Edw.  II.  it  had  become 

verdict  will  be  good.     Min.  Inst.  IV.  a  mere  form ;   for  it  is  said  in  a  case 

10.51    1052.  reported  of  that  year,  cest  court  (L  e., 

1  See  Bract.  214  b.     Et  inde  statim  the  Common  Pleas)  ne  soeffre  mye  la 

producat  (i.  c,  after  the  declaration  in  sute    estre    examine    (this    court    never 

an  action  of  prohibition)   sectam  suffi-  permits  the  suit  to  be  examined).    (7  Edw. 

cientem,    duos   ad   minus,   vel    tres,    vel  II.  242.) 

plures,  si  possit.     (And  then  at  once  let         *  Bract.  372,  b.     Glanville   gives   it 

him  produce  a  sufficient  suit,  two  at  least,  thus:  Et  hoc  promptus  sum  probare  per 

or    three,  or   more  if  he  can.)      (Ibid.,  hunc  liberum  meum  hominem,  &c.     (Glan. 

410  a.)     "Producit  sectam,  was  proffer-  Lib.  2,  c.  3.) 


420 


COMMON-LAW  PLEADING. 


offers^  Sfc.''''  The  count  in  dower  is  an  exception  to  the  rule  in 
question,  and  concludes  without  any  production  of  suit ;  a  pe- 
culiarity which  appears  always  to  have  belonged  to  that  action.^ 
We  may  again  notice,  in  this  place,  that  subjoined  to  the 
declaration,  in  proceedings  by  hill,  there  is  an  addition  of  the 
names  of  two  persons,  now  fictitious  ones,  as  pledges  for  the 
prosecution  of  the  suit.  By  the  old  law,  it  was  necessary  that, 
before  the  sheriff  executed  the  original  writ,  the  plaintiff 
should  give  him  security  that  he  would  pursue  his  claim.^ 
This  regulation  seems  to  have  been  extended  to  proceedings 
by  bill  also  ;  but,  in  these  proceedings,  the  security  would 
appear  to  have  been  given,  not  to  the  sheriff,  but  to  the  court 
itself,  and  the  time  for  giving  it  was  apparently  that  of  filing 
the  bill.  Hence  the  practice  in  question  of  entering  pledges 
at  the  foot  of  declarations  by  bill.  These  pledges,  however, 
are  now,  in  all  cases,  a  mere  matter  of  form ;  no  such  security 
being  actually  given  in  proceedings  either  by  bill  or  original. 

Rule  IY.    Pleas  must  be  pleaded  in  due  Order.^ 

The  order  of  pleading,  as  established  at  the  present  day,  is 
as  follows :  — 

Pleas. 

1.  To  the  jurisdiction  of  the  court. 

2.  To  the  disability  of  the  person : 

3.  To  the  count  or  declaration. 

1.  For  matter  ap- 
parent on  the 
face  of  it. 

2.  For  matter  de- 
hors the  writ. 

,  2.  To  the  action  of  the  writ. 
6.  To  the  action  itself  in  bar  thereof.* 

1  Booth,  and  Co.  Ent.  tit.  Dower.  ^  Qq^  JA\A,.  303   a  ;   Longneville  v. 

2  Hussey  v.   More,   Cro.   Jac.   414;    Thistleworth,  2  Ld.  Raym.  970. 

s.  c,  3  Bulst.   279.     This  practice  is         *  Com.  Dig.  Abatement,  C. ;   Chit, 
still  indicated  by  the  form  of  the  orig-    PI.  379. 
inal  writs,  which   always  contain   the 
clause  of  si  te  fecerit  securum. 


1.  Of  plaintiff. 

2.  Of  defendant. 


4.  To  the  writ 


To  the  form  of 
the  writ : 


OF  CERTAIN  MISCELLANEOUS  RULES.  421 

In  this  order  the  defendant  may  plead  all  these  kinds  of 
pleas  successively.  Thus,  he  may  first  plead  to  the  jurisdic- 
tion^ and,  upon  demurrer  and  judgment  of  respondeat  ouster 
thereon,  may  resort  to  a  plea  to  the  disability  of  the  person  ; 
and  so  to  the  end  of  the  series. 

But  he  can  not  plead  more  than  one  plea  of  the  same  kind  or 
degree.  Thus,  he  can  not  offer  two  successive  pleas  to  the 
jurisdiction,  or  two  to  the  disability  of  the  person.^ 

So  he  can  not  vary  the  order  ;  for  hy  a  plea  of  any  of  these 
kinds  he  is  taken  to  waive  or  renounce  all  pleas  of  a  kind  prior 
in  the  series. 

And,  if  issue  in  fact  be  taken  upon  any  plea,  though  of  the 
dilatory  class  only,  the  judgment  on  such  issue  (as  elsewhere 
explained)  either  terminates  or  (in  case  of  a  plea  of  suspen- 
sion) suspends  the  action,  so  that  he  is  not  at  liberty,  in  that 
case,  to  resort  to  any  other  kind  of  plea. 

Rule  V.    Pleas  must  be  pleaded  with  Defence.^ 

The  nature  and  meaning  of  defence  have  been  already  fully 
explained. 

Its  form  varies  in  some  degree  according  to  the  nature  of 
the  action. 

In  the  writ  of  rights  where  the  demandant  claims  on  his  own 
seisin,  it  is  thus  :  "  And  the  said  G.  D.,  by  E.  F.,  his  attorney, 
comes  and  defends  the  right  of  the  said  A.  B.,  and  his  seisin, 
when,  ^c,  and  all,  ^c,  and  whatsoever,  S^c,  and  chiefly  of 
the  tenements  aforesaid,  with  the  appurtenances,  as  of  fee  and 
right,  ^c,  and  says;^'  and  then  the  matter  of  the  plea  is 
stated. 

In  a  writ  of  right,  when  the  demandant  claims  on  the  seisin 
of  his  ancestor,  it  is  thus  :  "  And  the  said  Q.  D.,  by  E.  F.,  his 
attorney,  comes  and  defends  the  right  of  the  said  A.  B.,  and  the 
seisin  of  the  said  G.  B.  (the  ancestor),  when,  S^c,  and  all,  ^c, 
and  whatsoever,  ^c,  and  chiefly  of  the  tenements  aforesaid,  with 
the  appurtenances,  as  of  fee  and  right,  ^c,  and  says."^ 

1  Com.  Dig.  Abatement,  I.  3 ;  Bac.  sam,  Yelv.  210 ;  Hampson  v.  Bill,  3 
Ab.  Abatement,  0.  Lev.  240. 

2  Co.  Litt.  127  b ;  Tampian  v.  New-         8  Booth,  94 ;  Co.  Ent.  181  b. 


422  COMMON-LAW   PLEADING. 

In  formedon  the  defence  is  :  "  And  the  said  C.  D.,  hy 
E.  jP.,  Ms  attorney^  comes  and  defends  his  right,  when,  ^c, 
and  saysy  ^ 

The  action  of  dower  is  an  exception  to  the  rule,  and  in  this 
suit  defence  is  not  made.^ 

In  quare  impedit  the  defence  is :  "  And  the  said  0.  jD.,  hy 
E.  F.,  his  attorney,  comes  and  defends  the  wrong  and  injury, 
when,  (j-c,  and  says.^^ 

In  trespass:  ^^ And  the  said  C.  D.,  by  E.  F.,  his  attorney, 
comes  and  defends  the  force  and  injury,  when,  ^c,  and  says." 

In  other  personal  actions :  "  And  the  said  C.  D.,  hy  E.  F., 
his  attorney,  comes  and  defends  the  wrong  and  injury,  when,  ^c, 
and  says." 

The  word  "  comes  "  expresses  the  appearance  of  the  defend- 
ant in  court.  It  is  taken  from  the  style  of  the  entry  of  the 
proceedings  on  the  record,  and  formed  no  part  of  the  viva  voce 
pleading.  It  is  accordingly  not  considered  as  in  strictness 
constituting  a  part  of  the  plea.^ 

The  word  "  defends^'  as  used  in  these  formulce,  has  not  its 
popular  sense.  It  imports  denial,  being  derived  from  the  law 
Latin  defendere,  or  the  law  French  defendre  (both  of  which 
signify  to  deny)  ;  and  the  effect  of  the  expression  is  that  the 
defendant  denies  the  right  of  the  plaintiff,  or  the  force  or 
wrong  charged.  This  denial,  however,  is  now  mere  matter 
of  form ;  for  the  defence  is  used,  not  merely  when  the  plea  is 
by  way  of  denial  or  traverse,  but  when  by  confession  and 
avoidance  also ;  and,  even  when  the  plea  does  deny,  other 
words  are  employed  for  that  purpose,  as  we  have  seen,  besides 
those  of  the  formal  defence. 

The  ^c.'s  supply  the  place  of  words  which  were  formerly 
inserted  at  length.  In  a  personal  action,  for  example,  the 
form,  if  fully  given,  would  be  as  follows :  "  And  the  said 
C.  D.,  hy  E.  F.,  his  attorney,  comes  and  defends  the  force  " 
(or  ""^  wrong" )  ^^ and  injury,  when  and  where  it  shall  behoove 

1  Booth,    148.     Defendit   jus   suum,    right  of  the  demandant.    (See  Bl.  Com. 
&c.,  is  the   Latin   phrase ;  but  this  is    III.  297*.) 
ungrammatically    put,    as    Blackstone         ^  xjast.  Ent.  228. 
conjectures,  for  ejus,  and  refers  to  the         '^  Stephens    v.   Arthur,    Salk.    544 ; 

Chit.  PI.  367,  469. 


OP   CERTAIN   MISCELLANEOUS   RULES.  423 

Mm^  and  the  damages^  and  whatsoever  else  he  ought  to  defend, 
and  sagsJ^  ^ 

Full  Defence  and  Half  Defence. 

At  a  time  when  this  formula  was  of  more  importance  than 
it  now  is,  particular  effects  were  assigned  to  its  different 
clauses.  It  was  said  that,  by  defending  "  when  and  where  it 
shall  behoove  him^''  the  defendant  impliedly  acknowledged  the 
jurisdiction  of  the  court ;  and,  by  defending  the  "  damages^  and 
whatsoever  else  he  ought  to  defend^''  he  in  effect  admitted  the 
competency  of  the  plaintiff  to  sue  ;  that  by  the  former  words, 
therefore,  he  was  excluded  from  proceeding  to  plead  to  the 
jurisdiction,  and  by  the  latter  from  pleading  to  the  disability  of 
the  plaintiff.  Hence  arose  a  distinction  between  '■'•full  defence''^ 
and  "  half  defence^''  the  former  being  that  in  which  all  the 
clauses  were  inserted ;  the  latter  being  abridged  thus  :  "  And 
the  said  0.  D.,  hy  E.  F.,  his  attorney,  comes  and  defends  the 
force  "  (or  "  wrong'''')  "  and  injury,  and  saysT  Half  defence 
was  used  where  the  defendant  intended  to  plead  to  the  juris- 
diction or  in  disability,  and  full  defence  in  other  cases.  All 
this  doctrine,  however,  is  now,  in  effect,  superseded  by  the 
uniform  practice  of  making  defence  with  an  ^c,  as  in  the 
forms  first  above  given ;  it  having  been  decided  that  such 
method  will  operate  either  as  full  defence  or  half  defence,  as 
the  nature  of  the  plea  may  require.  ^ 

Defence  is  used  in  almost  all  actions.  It  has  been  seen, 
however,  that  dower  is  an  exception ;  and  the  case  is  the  same 
with  an  assize;  the  form  of  commencing  the  plea  in  these 
actions  being  merely  "  comes  and  says^''  and  not  "  comes  and 
defends^  ^ 

Defence  is  used,  too,  in  almost  every  description  of  plea 
in  those  actions  in  which  it  obtains. 

1  Bac.  Ab.  Pleas,  &c.  D.  ^  Booth,   118.     In  saVe  facias  also 

2  Co.  Litt.  127  b;  Alexander  v.  no  defence  is  made.  (Bac.  Ab.  Tleas, 
Mawman,  Willes,  40 ;  Wilkes  v.  Wil-    &c.  D.) 

liams,  8  T.  R.  63.3  ;  2  Saund.  209  c,  n. 
1  ;  Chit.  PI.  368,  369. 


424  COMMON-LAW  PLEADING. 

Rule  VI.    Pleas  in  Abatement  must  give  the  Plaintiff 
A  better  Writ  or  Bill.i 

The  meaning  of  this  rule  is,  that  in  pleading  a  mistake  of 
form  in  abatement  of  the  writ  or  bill,  the  plea  must,  at  the 
same  time,  correct  the  mistake,  so  as  to  enable  the  plaintiff  to 
avoid  the  same  objection  in  framing  his  new  writ  or  bill. 

ExavijAe :  If  a  misnomer  in  the  Christian  name  of  the  de- 
fendant be  pleaded  in  abatement,  the  defendant  must,  in  such 
plea,  show  what  his  true  Christian  name  is,  and  even  what  is  his 
true  surname  ;  ^  and  this  though  the  true  surname  be  already 
stated  in  the  declaration,  lest  the  plaintiff  should  a  second 
time  be  defeated  by  error  in  the  name. 

These  pleas,  as  tending  to  delay  justice,  are  not  favorably 
considered  in  law,  and  the  rule  in  question  was  adopted  in 
order  to  check  their  repetition. 

This  condition  of  requiring  the  defendant  to  give  a  better 
writ  is  often  a  criterion  to  distinguish  whether  a  given  matter 
should  be  pleaded  in  abatement  or  in  harl^  The  latter  kind 
of  plea,  as  impugning  the  right  of  action  altogether,  can,  of 
course,  give  no  better  writ ;  for  its  effect  is  to  deny  that, 
under  any  form  of  writ,  the  plaintiff  could  recover  in  such 
action.  If,  therefore,  a  better  writ  can  be  given,  this  shows 
that  the  plea  ought  not  to  be  in  bar,  but  in  abatement. 

Rule  YII.    Dilatory  Pleas   must  be    pleaded  at  a  Pre- 
liminary Stage  op  the  Suit. 

Dilatory  pleas  are  generally  not  allowable  after  full  de- 
fence ;  ^  nor  after  a  general  imparlance  ;  ^  nor  after  oyer^  or 
a  view ;'*  nor  after  voucher;^  nor  after  a  plea  in  bar?  And, 
besides  these,  there  are  other  proceedings  also  which  have 
the  effect  of  excluding  a  subsequent  dilatory  plea ;  but,  being 

1  Com.  Dig.  Abatement,  1. 1 ;  Evans         *  Com.  Dig.  Abatement,  I.  16. 
V.  Stevens,  4  T.  R.  227  ;  Mainwaring  v.         ^  Ibid.,  L  20. 

Newman,  2  Bos.  &  Pul.  120;  Haworth  ^  Jhid.,  I.  22. 

V.  Spraggs,  8  T.  R.  515.  "^  Ibid.,  I.  25. 

2  Haworth  v.  Spraggs,  8  T.  R.  515.  8  Jbid.,  I.  28. 

3  1  Saund.  284,  n.  4 ;  Evans  v.  Ste-  ^  Ibid.,  I.  23. 
vens,  ubi  supra. 


OF   CERTAIN   MISCELLANEOUS   RULES.  425 

of  a  less  ordinary  and  general  kind,  it  is  not  necessary  here 
to  notice  them  more  distinctly .^ 

Rule  VIII.     All  Affirmative   Pleadings  which  do   not 

CONCLUDE   to   THE    COUNTRY    MUST    CONCLUDE    WITH    A    VbRI- 
FICATI0N.2 

Where  an  issue  is  tendered  to  be  tried  by  jury,  it  has  been 
shown  that  the  pleading  concludes  to  the  country.  In  all 
other  cases  pleadings,  if  in  the  affirmative  form,  must  con- 
clude with  a  formula  of  another  kind,  called  a  verification  or 
an  averment. 

The  verification  is  of  two  kinds,  (1)  common  and  (2)  special. 

(1)  The  common  verification  is  that  which  applies  to  ordi- 
nary cases,  as  in  the  following  form:  '■^ And  this  the  said 
A.  B."  for  "a  D."J  "  is  ready  to  verify.'' 

(2)  The  special  verifications  are  used  only  where  the  matter 
pleaded  is  intended  to  be  tried  by  record,  or  by  some  other 
method  than  a  jury.  They  are  in  the  following  forms  :  "  And 
this  the  said  A.  5,"  for  "(7.  jO.'V  "is  ready  to  verify  hy  the 
said  record,^'  or,  '■'•And  this  the  said  A.  J5."  (or  "  O.  D.^'J  "zs 
ready  to  verify  when,  where,  and  in  such  manner  as  the  court 
here  shall  order,  direct,  or  appoint.''^ 

The  origin  of  this  rule  is  as  follows :  — 

It  was  a  doctrine  of  the  ancient  law,  little,  if  at  all,  noticed 
by  modern  writers,  that  every  pleading  affirmative  in  its 
nature  must  be  supported  by  an  offer  of  some  mode  of  proof ; 
and  the  reference  to  a  jury  (who,  as  formerly  explained, 
were  in  the  nature  of  witnesses  to  the  fact  in  issue)  was 
considered  as  an  offer  of  proof  within  the  meaning  of  that 
doctrine.  When  the  proof  proposed  was  that  by  jury,  the 
offer  was  made  in  the  viva  voce  pleading,  by  the  words  prest 
d'averrer,  or  prest,  Sj-c,  which  in  the  record  was  translated, 
Et  hoc  paralus  est  verificare  (and  this  he  is  prepared  to 
prove).^ 

1  See  the  instances,  Com.  Dig.  »  gee  10  Edw.  III.  23 ;  ibid.,  25,  and 
Abatement,  I.  26,  &c.  the  Year  Books,  passim. 

2  Com.  Dig.  Pleader,  E.  32,  E.  33 ; 
Co.  liitt.  303  a ;  Finch,  Law,  359. 


426  COMMON-LAW   PLEADING, 

On  the  other  hand,  where  other  modes  of  proof  were  in- 
tended, the  record  ran,  Et  hoc  paratus  est  verijicare  per  recor- 
dum  (and  this  he  is  prepared  to  prove  hy  the  record),  or  Et  hoc 
paratus  est  verijicare  quocunque  mode  curia  consider averit  (and 
this  he  is  prejyared  to  prove  in  whatever  manner  the  court  shall 
determine). 

But  while  these  were  the  forms  generally  observed,  there 
was  the  following  exception,  that  on  the  attainment  of  an  issue 
to  be  tried  by  jury,  the  record  marked  that  result  by  a  change 
of  phrase,  and  substituted,  for  the  verification,  the  conclusion 
ad  patriam,  to  the  country.^ 

The  written  pleadings  (which,  it  will  be  remembered,  are 
framed  in  the  ancient  style  of  the  record)  still  retain  the  same 
formulce  in  these  different  cases,  and  with  the  same  distinc- 
tions as  to  their  use.  They  preserve  the  conclusion  to  the 
country,  t-o  mark  the  attainment  of  an  issue  triable  by  jury, 
but  in  other  cases  conclude  with  a  translation  of  the  old 
Latin  phrase,  Et  hoc  paratus,  ^c;  and  hence  the  rule,  that 
an  aifirmative  pleading  that  does  not  conclude  to  the  country 
must  conclude  with  a  verification.^ 

As  the  ancient  rule  requiring  an  offer  of  proof  extended 
only  to  affirmative  pleadings  (those  of  a  negative  kind  being 
generally  incapable  of  proof),  so  the  rule  in  question  now 
applies  to  the  former  only,  no  verification  being  in  general 
necessary  in  a  negative  pleading,  ^  but  it  is  nevertheless  the 
practice  to  conclude  with  a  verification  all  negative  as  well 
as  affirmative  pleadings  that  do  not  conclude  to  the  country. 

Rule  IX.       In  all  Pleadings  where  a  Deed  is  alleged, 

UNDER    which    THE    PaRTY     CLAIMS    OR    JUSTIFIES,     PrOFERT 

OP  SUCH  Deed  must  be  made.* 

Where  any  party  pleads  a  deed,  and  claims  or  justifies 
under   it,    the  mention  of  the  instrument   is  accompanied 

1  See  10  Edw.  III.  25,  26,  &c.  account  of  the  origin  of  this  rule  con- 

2  "  Every  plea   or   bar,   replication,    tained  in  the  text. 

&c.,  must  be  offered  to  be  proved  true,  by         ^  Co.  Litt.  30.3  a ;  Millner  v.  Crow- 
saying  in  the  plea,  Et  hoc  paratus  est  dall,  1  Show.  338. 

verijicare,  which  we  call  an  averment."         *  Com.   Dig.    Pleader,   0.    1  ;    Ley- 

(Finch,   Law,   359.)     This   gives  con-  field's  Case,  10  Co.  Kep.  92  a. 
firmation,  it  will  be  observed,  to  the 


OF   CERTAIN   MISCELLANEOUS   RULES.  427 

with   a  formula  to  this   effect:    "  One  part  of  which  said 
indenture  ^^  (or  other  deed),  ^'' sealed  with  the  seal  of  the  said 

,  the  said now  brings  here  into  court,  the  date  whereof 

is  the  day  and  year  aforesaid. " 

This  formula  is  called  making  frofert  of  the  deed.  Its 
present  practical  import  is  that  the  party  has  the  instrument 
ready  for  the  purpose  of  giving  oyer ;  and  at  the  time  when 
the  pleading  was  viva  voce  it  implied  an  actual  production 
of  the  instrument  in  open  court  for  the  same  purpose. 

The  Rule,  in  General,  applies  to  Deeds  only. 

No  profert,  therefore,  is  necessary  of  any  written  agree- 
ment or  other  instrument  not  under  seal,^  nor  of  any  instru- 
ment which,  though  under  seal,  does  not  fall  within  the 
technical  definition  of  a  deed  ;  as,  for  example,  a  sealed  will 
or  award. 2  This,  however,  is  subject  to  exception  in  the 
case  of  letters  testamentary  and  letters  of  administration; 
executors  and  administrators  being  bound,  when  plaintiffs, ^ 
to  support  their  declaration  by  making  profert  of  these 
instruments. 

Limitations  of  Rule, 

The  rule  applies  only  to  cases  where  there  is  occasion  to 
mention  the  deed  in  pleading.  When  the  course  of  allega- 
tion is  not  such  as  to  lead  to  any  mention  of  the  deed,  a 
profert  is  not  necessary,  even  though  in  fact  it  may  be  the 
foundation  of  the  case  or  title  pleaded. 

The  rule  extends  only  to  cases  where  the  party  claims  under 
the  deed,  or  justifies  under  it;  and  therefore,  when  the  deed  is 
mentioned  only  as  inducement  or  introduction  to  some  other 
matter,  on  which  the  claim  or  justification  is  founded,  or 
alleged,  not  to  show  right  or  title  in  the  party  pleading,  but 
for  some  collateral  purpose,  no  profert  is  necessary.^ 

1  Com.  Dig.  Pleader,  0.  3 ;  Ayles-  tary,  &c.  as  defendants.  (See  Marsh  v. 
bury  V.  Harvey,  3  Lev.  205.  Newman,  Poph.  163,  1G4,  cites  36  lien. 

2  Com.   Dig.  Pleader,  ubi  supra;  2    VI.  36.) 

Saund.  62  b,  n.  5.  *  Bellamy's  Case,  G  Co.  Rep.  38  a; 

3  But  semb.  that  they  are  not  bound  Holland  v.  Shelley,  Hob.  303 ;  Banfill  v. 
to  make  profert  where  they  have  oc-  Leigh,  8  T.  R.  571 ;  Com.  Dig.  Pleader, 
casion  to  plead  the  letters  testamen-  O.  8,  0.  16;  1  Saund.  9  a,  n.  1. 


428  COMMON-LAW  PLEADING. 

The  rule  is  confined,  too,  to  cases  where  the  party  relies 
on  the  direct  and  intrinsic  operation  of  the  deed.  ^ 

Example :  In  pleading  a  conveyance  under  the  statute  of  uses, 
it  is  not  necessary  to  make  pjrofert  of  the  lease  and  release,  be- 
cause it  is  the  statute  that  gives  effect  to  the  conveyance,  and 
the  deeds  do  not  intrinsically  establish  the  title. 

Another  exception  to  the  rule  obtains  where  the  deed  is 
lost  or  destroyed  through  time  or  accident,  or  is  in  the  posses- 
sion, of  the  opposite  party. ^  These  circumstances  dispense 
with  the  necessity  of  a  profert,  and  the  formula  is  then  as 
follows :  "  Which  said  writing  obligatory "  (or  other  deed) 
"  having  been  lost  by  lapse  of  time  "  (or  "  destroyed  by  acci- 
dental fire,^^  or  ^^ being  in  the  possession  of  the  said "), 

"  the  said can  not  produce  the  sarne  to  the  court  here. " 

Reason  of  Rule. 

In  his  text  Mr.  Stephen  has  the  following  speculations  as 
to  the  reason  of  this  rule :  — 

"The  reason  assigned  for  the  rule  requiring  profert  is, 
that  the  court  may  be  enabled  by  inspection  to  judge  of  the 
sufficiency  of  the  deed.^  The  author,  however,  presumes  to 
question  whether  the  practice  of  making  profert  originated 
in  any  view  of  this  kind.  It  will  be  recollected  that,  by 
an  ancient  rule,  all  affirmative  pleadings  were  formerly 
required  to  be  supported  by  an  offer  of  some  mode  of  proof. 
As  the  pleader,  therefore,  of  that  time  concluded  in  some 
cases  by  offering  to  prove  by  jury  or  by  the  record,  so,  in 
others,  he  maintained  his  pleading  by  producing  a  deed  as 
proof  of  the  case  alleged.  In  so  doing  he  only  complied 
with  the  rule  that  required  an  offer  of  proof.  Afterwards, 
the  trial  by  jury  becoming  more  universally  prevalent,  it 
was  often  applied  (as  at  the  present  day)  to  determine  ques- 
tions arising  as  to  the  genuineness  or  validity  of  the  deed 

1  Banfill  V.  Leigh,  8  T.  R.  573 ;  Read  3  Leyfield's  Case,  10  Co.  Rep.  92  b; 
V.  Brookman,  3  T.  R.  156.  Co.  Litt.  35  b. 

2  Read    v.    Brookman,    uhi    supra; 
Carver  v.  Pinkney,  3  Lev.  82. 


OP  CERTAIN  MISCELLANEOUS  RULES.  429 

itself  so  produced ;  and  from  this  time  a  deed  seems  to  have 
been  no  longer  considered  as  a  method  of  proof,  distinct  and 
independent  of  that  by  jury.  Consequently  it  became  the 
course  to  introduce,  as  well  in  pleadings  where  the  party 
relied  on  a  deed  as  in  other  cases,  the  common  verification 
or  offer  to  prove  by  jury  ;  and  the  true  object  of  the  profert 
was  in  this  manner  not  only  superseded,  but  forgotten, 
though  in  practice  it  still  continued  to  be  made." 

The  foregoing  observations  of  Mr.  Stephen  have  been 
confirmed  very  strikingly  by  later  writers.  The  subject  is 
so  interesting  that  the  student  should  have  fuller  informa- 
tion here  with  respect  to  it,  although  it  more  properly 
belongs  to  the  law  of  evidence. 

Among  the  Anglo-Saxons  "  written  documents  were  largely 
introduced  through  the  influence  of  the  Roman  Church,  and 
became  the  strongest  and  most  natural  means  of  proof.  .  .  . 
Not  that  the  appeal  to  the  oath  and  the  use  of  witnesses 
were  laid  aside ;  but  the  document  was  not  only  a  more  ser- 
viceable, but  also  as  good  a  means  of  proof  as  these. "  ^  More 
than  this :  a  certain  mystery  attached  to  it.  "  The  written 
document,  which  few  have  the  art  to  manufacture,  is  regarded 
with  mystical  awe.  .  .  .  The  act  of  setting  one's  hand  to 
it  is  a  stipulatio  (a  formal  contract) ;  it  is  delivered  over  as 
a  symbol  along  with  twig  and  turf  and  glove.  ...  It  is 
broadly  stated  that,  according  to  the  Lex  Romana  (Roman 
Law),  any  one  who  contravenes  or  will  not  perform  a  written 
agreement  is  infamous  and  to  be  punished. "  ^  What  more 
natural  than  that  the  plaintiff  should,  if  he  relied  on  such 
foundation  for  his  claim,  produce  it  as  the  unanswerable 
proof  of  the  demand?  As  we  have  seen,  "  it  was  the  office  of 
the  secta  to  support  the  plaintiff's  case,  in  advance  of  any 
answer  from  the  defendant.  This  support  might  be  such 
as  to  preclude  any  denial,  .  .  .  where  the  defendant's  own 
.  .  .  document  was  produced.  .  .  .  Documents,  tallies,  the 
production  of  the  mainour,  the  showing  of  the  wound  in 
mayhem,   all  belong  under  this   general   conception.     The 

1  Anglo-Saxon  Law,  230,  231.  a  p.  &  m.  Hist.  11.  190. 


430  COMMON-LAW   PLEADING. 

history  of  our  law  from  the  beginning  of  it  is  strewn  with 
cases  of  the  profert  of  documents. "  ^ 

Of  trial  by  charters  or  documents,  but  little  can  be  said 
here.  "The  effect  and  interpretation  of  documents  were 
ordinarily  matter  for  the  judges ;  and  trial  by  charters  had, 
in  consequence,  more  of  the  features  of  trials  of  the  present 
day  than  any  other  form  of  litigation,  except  that  by  inqui- 
sition and  recognition.  The  event  was  not,  as  it  was  in 
trial  by  wager  of  law  and  by  party-witness,  largely  and  often 
wholly  in  the  hands  of  the  party  who  had  delivered  the  last 
good  pleading.  Nor  was  it  necessarily  left  to  some  external 
test,  incapable  in  fact  of  discovering  to  the  court  the  truth. 
But  as  in  the  case  of  trial  by  inquisition,  the  truth  was,  if 
possible,  sought  by  a  rational  and  satisfactory  mode  of 
inquiry ;  as  by  a  comparison  of  the  seal  ^  in  question  with 
other  seals  of  the  same  party,  admitted  to  be  genuine.^ 

"  Whatever  a  defendant  pleaded  in  answer  to  the  plain- 
tiff's claim  of  title  or  right  by  charter,  or  whatever  the 
plaintiff  may  have  replied  to  a  defence  of  right  or  title  by 
charter,  the  charter  must  be  produced  at  the  trial  and  be- 
come the  main  subject  of  contest.  The  defendant  or  plain- 
tiff must  allege  either  that  the  charter  did  not  cover  the 
subject-matter  of  the  suit,  or,  if  it  did,  that  it  had  been 
annulled,  suspended,  or  defeated  by  some  other  competent 
charter,  document,  or  act,  or  that  the  charter  itself  was 
incomplete  or  a  forgery.  Whichever  of  these  positions  was 
taken,  the  charter  in  question,  with  the  counter-charter,  if 
such  were  set  up,  must  be  produced,  and  the  trial  thus 
became  a  trial  by  charter.   .  .   . 

"When,  however,  there  was  no  means  of  determining  of 
the  genuineness  of  the  seal  (for  if  that  was  genuine,  the 
charter  at  the  time  when  it  was  executed  was  valid)  by 
inspection  or  comparison,  then  the  party  offering  the 
impeached  document  might  have  recourse  to  the  duel  to 
establish    the    seal    by   any    proper    witness     (champion), 

1  Thay.  Jury,  13.  essential  part  of  a  charter."    P.  &  M 

2  By    Stephen's    day,    "men    were    Hist.  II.  221. 

beginning    to    look    for  a  seal  as  an        »  Glanvill,  Lib.  10,  c.  12,  sec.  4. 


OF   CERTAIN   MISCELLANEOUS   RULES.  431 

especially  by  one  whose  name  had  been  inserted  by  authority 
in  the  charter  in  question."  ^ 

After  the  introduction  of  trial  by  jury,  this  question  was 
naturally  referred  to  that  mode  of  trial  for  solution. 

"  Profert  was  required  of  a  deed  only,  because  in  the  case 
of  no  other  species  of  evidence  was  it  possible.  .  .  .  Records 
were  writings  in  public  custody,  which  the  party  could  not 
bring  into  court,  because  they  were  confined  by  law  to  some 
certain  place.  .  .  .  Unsealed  writings  were,  at  the  time  of 
the  invention  of  profert,  no  evidence  at  all.  Of  oral  testi- 
mony, for  obvious  reasons,  profert  could  not  be  made,  nor 
could  it  have  been  necessary  or  useful.  .  .  .  Profert  was 
then  to  be  made  of  a  deed,  and  of  nothing  else,  because  a 
deed  was  the  only  description  of  evidence  of  which  it  was 
possible,  or  could  be  useful. "  ^ 

Rule   X.     All  Pleadings  must  be  properly  entitled  op 
THE  Court  and  Term.^ 

With  respect  to  the  title  of  the  court,  it  generally  consists 
of  a  superscription  of  the  name  of  the  court,  thus  :  "  In  the 
King^s  Bench,"  "  In  the  Common  Pleas,"  or  "  In  the  Ex- 
chequer.''''^ But  in  a  declaration  hy  hill  in  the  King^s  Bench 
it  consists  of  a  superscription  of  the  name  of  the  prothonotary. 

With  respect  to  the  title  of  the  term,  it  is  either  general, 

thus :    ''  Trinity  term,  in  the  fourth  year  of  the  reign  of  King 

G-eorge  the  Fourth  ;  "    or  special,  thus  :    "  Monday  7iext,  after 

fifteen  days  of  the  Holy  Trinity,  in  the  fourth  year  of  the  reign 

of  King  George  the  Fourth." 

Such  title  refers  to  the  time  when  the  party  is  supposed  to 
deliver  his  oral  allegation  in  open  court ;  and  as  it  was  only  in 
term  time  that  the  court  anciently  sat  to  hear  the  pleading,  it 
is  therefore  always  of  a  term  that  the  pleadings  are  entitled, 
though  they  are  often  in  fact  filed  or  delivered  in  vacation 
time.     The  term  of  which  any  pleading  is  entitled  is  usually 

1  Glanvill,  Lib.  10,  c.  12,  sec.  3,  4;  1  Marsh.  341  ;  Chit.  PL  376,  397, 
Hist.  Pr.  316,  317,  318.  468. 

2  Evans,  PI.  27,  28.  *  Com.   Dig    Pleader,   C.  7  ;    Chit 
8  I  Arch.  72,  162;  Topping  v  Fuge,    PL  376,  468. 


432  COMMON-LAW   PLEADING. 

that  in  wliich  it  is  actually  filed  or  delivered;^  or,  where 
this  takes  place  in  vacation  time,  the  title  is  of  the  term  last 
preceding. 

The  most  frequent  practice  is  to  entitle  generally  (accord- 
ing to  the  first  form  above  given).  But  it  is  to  be  observed 
that  a  pleading  so  entitled  is  by  construction  of  law  presumed, 
unless  proof  be  given  to  the  contrary,  to  have  been  pleaded 
on  the  first  day  of  the  term.  And  the  effect  of  this  is,  that  if 
a  general  title  be  used,  it  will  sometimes  occasion  an  apparent 
objection. 

Example :  In  the  case  of  a  declaration  so  entitled,  it  may 
appear  in  evidence  on  the  trial  that  the  cause  of  action  arose  in 
the  course  and  after  the  first  day  of  the  term  of  which  the  decla- 
ration is  entitled,  or  this  may  appear  on  the  face  of  the  declara- 
tion itself ;  and,  in  either  case,  this  objection  would  arise,  that 
the  plaintiff  would  appear  to  have  declared  before  his  cause  of 
action  arose  ;  whereas  the  cause  of  action  ought  of  course  always 
to  exist  at  the  time  the  action  is  commenced.'* 

The  means  of  avoiding  this  diflEiculty  is  to  entitle  specially 
(according  to  the  second  form  above  given)  of  the  particular 
day  in  the  term  when  the  pleading  was  actually  filed  or 
delivered. 

Rule  XI.     All  Pleadings  ought  to  be  Tbue.^ 

While  this  rule  is  recognized,  it  is  at  the  same  time  to  be 
observed,  that  generally  there  is  no  means  of  enforcing  it  as 
a  rule  of  pleading,  because  regularly  there  is  no  way  of  prov- 
ing the  falsehood  of  an  allegation  till  issue  has  been  taken 
and  trial  had  upon  it. 

It  may  also  be  observed,  that,  notwithstanding  this  rule, 
a  practice  has  prevailed  of  what  is  called  sham  pleading  ;  that 

1  But  dilatory  pleas,  though  pleaded  the  trial,  it  may  be  answered  by  giving 
in  a  term  subsequent  to  that  of  which  evidence  that  the  declaration  was  actu- 
the  declaration  is  entitled  (as  is  some-  ally  filed  on  a  subsequent  day  in  the 
times  the  case),  must  yet  always  be  term.  (Granger  v.  George,  5  Barn.  & 
entitled  of  the  same  term  with  the  dec-  Cress.  149.) 

laration,  unless  pleaded  with  a  special         ^  b^c.  Ab.  Pleas,  &c.,  G.  4 ;  Slade  v. 

or  general  special  imparlance.     See  this  Drake,  Hob.  295  ;  Smith  v.  Yeomans, 

further  explained.  Chit.  PL  397,  398.  1  Saund.  316. 

2  But  where  this  objection  arises  on 


OF   CERTAIN   MISCELLANEOUS  RULES.  433 

is,  pleading,  for  the  mere  purpose  of  delay,  a  matter  which 
the  pleader  knows  to  be  false.  There  are  certain  pleas  of  this 
kind  which,  in  consequence  of  their  having  been  long  and 
frequently  used  in  practice,  have  obtained  toleration  from  the 
courts,  and,  though  discouraged,  are  tacitly  allowed ;  as,  for 
example,  the  common  plea  of  judgment  recovered,  viz.,  that 
judgment  has  been  already  recovered  by  the  plaintiff  for  the 
same  cause  of  action.  But  in  other  cases  a  sham  plea,  when 
ascertained  to  be  so,  is  not  allowed.  It  is  true  that,  as 
already  observed,  it  can  not  generally,  and  in  the  regular 
course,  be  proved  that  a  plea  is  false  till  the  trial ;  but  where 
a  plea  is  not  in  the  usual  and  tolerated  form  of  a  sham  plea, 
and  the  matter  pleaded  is  at  the  same  time  very  improbable, 
and  presumably  intended  as  a  plea  of  that  description,  the 
court  will,  on  motion,  supported  by  affidavit  of  its  falsehood, 
allow  judgment  to  be  signed  by  the  plaintiff  as  for  want  of 
plea,  and  make  the  defendant  or  his  attorney  pay  the  costs.^ 
And  the  court  has  in  all  cases  power  to  punish  for  sham 
pleading,  and  has  often  strongly  censured  the  practice. 

Fictions  an  Exception  to  Rule. 

Lastly,  there  is  an  exception  to  the  rule  in  question,  in  the 
case  of  certain  fictions  established  in  pleading  for  the  con- 
venience of  justice. 

Examples  :  The  declaration  in  ejectment  always  states  a  ficti- 
tious demise  made  by  the  real  claimant  to  a  fictitious  plaintiff ; 
and  the  declaration  in  trover  uniformly  alleges,  though  almost 
always  contrary  to  the  fact,  that  the  defendant  found  the  goods 
in  respect  of  which  the  action  is  brought. 

1  Thomas  v.  Vandermoolen,  2  Barn.  Barn.    &    Cress.    286 ;    Merington    v. 

&  Aid.  197  ;  Bartley  v.  Godslake,  ibid.  Becket,  2  Barn.  &  Cress.  81  ;   Bell  v. 

199;  Shadwell  v.  Berthoud,  5  Barn.  &  Alexander,  6  M.  &  S.  133;  Young  v. 

Aid.  750,  751  ;  Kichley  v.  Proone,   1  Gadderer,  1  Bing.  380. 


28 


CONCLUSION. 

The  concluding  observations  of  Mr.  Stephen,  excellent  as 
they  are,  do  not  add  anything  to  the  principles  of  special 
pleading.  The  student  who  desires  to  consider  in  detail  the 
merits  and  the  defects  of  this  science  can,  however,  profitably 
study  what  Mr.  Stephen  has  said  under  these  heads,  as  also 
the  extended  remarks  upon  the  same  points  by  Professor 
Minor.i 

The  present  work  can  well  end  with  the  following  words 
of  Chief  Justice,  afterwards  Chancellor,  Kent.^ 

"  I  entertain  a  decided  opinion  that  the  established  princi- 
ples of  pleading,  which  compose  what  is  called  its  science, 
are  rational,  concise,  luminous,  and  admirably  adapted  to  the 
investigation  of  truth,  and  ought  consequently  to  be  very 
carefully  touched  by  the  hand  of  innovation." 

1  Min.  Inst.  IV.  1066-1088. 

2  Bayard  u.  Malcolm,  1  Johns.  Rep.  471  (Kent,  C.  J.,  1806). 


APPENDIX. 


SPECIMENS  OF  COMMON  LAW  RECORDS. 

I. 

ACTION  FOR  ASSAULT    AND    BATTEEY,  BY  BILL  IN 
KING'S   BENCH. 

HA  WE   versus  PLANNER. 
Trin.  17  Car.  II.  Regis,  Roll.  925. 

Berkshire,  |  Be  it  remembered  that  heretofore, 
to  wit.  J  to  wit,  in  the  term  of  St.  Hilary  last 
past,  before  our  lord  the  king  at  Westminster, 
came  Henry  Hawe  by  James  Rouse  his  attorney, 
and  brought  here  into  the  court  of  our  said  lord 
the  king,  then  there,  his  certain  bill  against  John 
Planner,  of  the  parish  of  Wokingham,  in  the  county 
aforesaid,  yeoman,  in  the  custody  of  the  marshal, 
&c.  of  a  plea  of  trespass,  and  there  are  pledges  of 
prosecution,  to  wit,  John  Doe  and  Richard  Roe, 
which  said  bill  follows  in  these  words ;  that  is  to 
say,  Berkshire,  to  wit,  Henry  Hawe  complains  of 
John  Planner,  of  the  parish  of  Wokingham  in  the 
county  aforesaid,  yeoman,  being  in  the  custody  of 
the  marshal  of  the  Marshalsea  of  our  lord  the  king 
before  the  king  himself,  for  that  he  on  the  4th  day 
of  September,  in  the  16th  year  of  the  reign  of  our 
lord  Charles  the  Second,  now  King  of  England,  &c. 
with  force  and  arms,  &c.  made  an  assault  upon  him 
the  said  Henry  Hawe,  at  Wokingham  aforesaid,  in 
the  county  aforesaid,  and  him  the  said  Henry  then 
and  there  beat,  wounded,  and  ill  treated,  so  that 
his  life  was  greatly  despaired  of,  and  other  wrongs 
to  him  then  and  there  did,  against  the  peace  of  our 
said  lord  the  now  king,  and  to  the  damage  of  him 
the  said  Henry  of  100^  and  therefore  he  brings 
suit,  &c. 


436 


COMMON-LAW   PLEADING. 


Plea. 


As  to  the  force 
and  arms,  <S:c., 
and  the  wound- 
ing, defendant 
pleads  not  guilty. 


And  as  to  the 
residue  of  the 
trespass,  actio 
non; 

because  defend- 
ant was  one  of 
the  churchwar- 
dens of  Woking- 
ham, and  plain- 
tiff an  inhabitant 
there ; 


and  the  plaintiff 
was  in  church 
during  the  time 
of  divine  service 
with  his  hat  on ; 


whereupon  de- 
fendant re- 
quested him  to 
take  his  hat  off 
his  head ;  which 
he  refused;  there- 
fore defendant 
took  plaintiff's 
hat  off  his  head 


And  now  at  this  day,  to  wit,  on  Friday  next 
after  the  Morrow  of  the  Holy  Trinity  in  this  same 
term,  until  which  day  the  said  John  had  leave  to 
imparl  to  the  bill  aforesaid,  and  then  to  answer, 
&c.,  before  our  lord  the  king  at  Westminster, 
comes  as  well  the  said  Henry  by  his  said  attorney, 
as  the  said  John  by  William  Willmer,  his  attor- 
ney ;  and  the  said  John  Planner  defends  the  force 
and  injury  when,  &c.  And  as  to  the  coming  with 
force  and  arms,  or  whatever  that  is  against  the 
peace  of  our  said  lord  the  now  king,  and  also  as  to 
the  said  wounding  above  supposed  to  be  done,  the 
said  John  Planner  saith  that  he  is  not  guilty 
thereof,  and  of  this  he  puts  himself  upon  the 
country,  and  the  said  Henry  thereof  likewise,  &c. 
And  as  to  the  residue  of  the  trespass  and  assault 
aforesaid  above  supposed  to  be  done,  the  said  John 
Planner  saith  that  the  said  Henry  ought  not  to 
have  or  maintain  his  said  action  thereof  against 
him;  because  he  saith,  that  before  the  said  time 
when  the  said  trespass  and  assault  is  supposed  to 
be  done,  and  at  the  time  when,  &c.,  he  the  said 
John  was  one  of  the  churchwardens  of  the  parish 
of  Wokingham  aforesaid,  duly  elected  and  ap- 
pointed ;  and  that  the  said  Henry  before  the  said 
time,  when,  &c.,  and  at  the  same  time  when,  &c., 
was  an  inhabitant  of  the  said  parish ;  and  that 
the  said  Henry  so  being  an  inhabitant  of  the  said 
parish  before  the  said  time  when,  &c.,  to  wit,  on 
the  21st  day  of  August,  in  the  16th  year  aforesaid, 
being  Sunday,  was  in  the  church  of  the  parish 
aforesaid  during  the  time  that  divine  service  was 
celebrated  in  the  said  church,  and  that  the  said 
Henry,  at  the  time  when  prayers  were  made  in  the 
same  church  by  the  congregation  of  the  people 
there,  irreverently  had  his  head  covered  with  his 
hat;  whereupon  he,  the  said  John,  being  such 
churchwarden  as  aforesaid,  then  and  there  admon- 
ished and  requested  the  said  Henry  to  uncover  his 
head,  which  the  said  Henry  refused  and  neglected 
to  do ;  whereupon  he  the  said  John  then  and  there 
took  from  the  head  of  the  said  Henry  his  said  hat, 
and  then  and  there  delivered  the  same  to  the  said 


APPENDIX. 


437 


and  delivered  it 
to  him,  which  is 
the  same  assault; 
and  traverses 
being  guilty  at 
anj'  other  time 
than  the  day 
mentioned  in  the 
plea. 


Curia  advisare 
vult. 


Ven.  fac.  tarn 
ad  triand.  quam 
ad  inquirend. 


Henry,  as  it  was  well  lawful  for  him  to  do ;  which 
said  taking  of  the  said  hat  of  the  said  Henry  from 
his  head  is  the  same  assaulting,  beating,  and  ill 
treating  whereof  the  said  Henry  above  thereof 
complains  against  him  the  said  John :  without 
this,  that  he  the  said  John  is  guilty  of  the  said 
assaulting,  beating  or  ill-treating  on  the  said  4th 
of  September,  or  at  any  other  time  than  on  the 
said  21st  day  of  August,  in  the  16th  year  afore- 
said, or  otherwise,  or  in  any  other  manner,  as 
the  said  Henry  Hawe  above  thereof  complains 
against  him  the  said  John ;  and  this  he  the  said 
John  is  ready  to  verify  ;  wherefore  he  prays  judg- 
ment if  the  said  Henry  ought  to  have  or  maintain 
his  said  action  thereof  against  him  the  said  John, 
&c.  (A  general  demurrer  and  a  joinder  in  de- 
murrer.) But  because  the  court  of  our  said  lord 
the  king  now  here  is  not  yet  advised  of  giving 
their  judgment  of  and  upon  the  premises  whereof 
the  parties  aforesaid  have  put  themselves  upon  the 
judgment  of  the  court,  a  day  thereof  is  given  to 
the  said  parties  before  our  lord  the  king  at  West- 
minster until  the  day  next  after  to 
hear  their  judgment  of  and  upon  the  premises, 
because  the  court  of  our  lord  the  king  here  thereof 
is  not  yet,  &c. ;  and  as  well  to  try  the  said  issue 
above  joined  between  the  said  parties  to  be  tried 
by  the  country,  as  to  inquire  what  damages  the 
said  Henry  Hawe  has  sustained  on  occasion  of 
the  said  trespass  and  assault,  whereof  the  said 
parties  have  put  themselves  upon  the  judgment  of 
the  court,  if  it  shall  happen  that  the  judgment 
should  be  given  for  the  said  Henry  Hawe  against 
the  said  John  Planner,  let  a  jury  thereof  come 
before  our  lord  the  king  at  Westminster  on  day 
next  and  who  neither,  &c.  to  recognize,  &c. 
because  as  well,  &c.  the  same  day  is  given  to  the 
said  parties  there,  &c. ;  at  which  Tuesday  next 
after  fifteen  days  of  the  Holy  Trinity,  before  our 
lord  the  king  at  Westminster,  come  the  parties 
aforesaid  by  their  attornies  aforesaid.  And  be- 
cause the  court  of  our  said  lord  the  king  here  is 
not  yet  advised  of  giving  their  judgment  of  and 


438 


COMMON-LAW  PLEADING, 


Adjournment 
to  Oxford. 


Term  ad- 
journed to 
Windsor. 


Adjournment 
to  Westminster. 


upon  the  premises,  a  day  thereof  is  further  given 
to  the  said  parties  before  our  lord  the  king  at 
Westminster  until  Monday  next  after  three  weeks 
of  St.  Michael,  to  hear  their  judgment  of  and 
upon  the  premises  because  the  court  of  our  said 
lord  the  king  now  here  is  thereof  not  yet,  &c.; 
before  which  day  the  said  plaint  was  adjourned  by 
our  said  lord  the  king's  writ  of  common  adjourn- 
ment before  our  said  lord  the  king  at  Oxford,  in 
the  county  of  Oxford,  until  Saturday  in  the  octave 
of  St.  Martin ;  at  which  day,  before  our  lord  the 
king  at  Oxford,  come  the  parties  aforesaid  by  their 
attornies  aforesaid.  And  because  the  court  of  our 
said  lord  the  king  now  here  is  not  yet  advised  of 
giving  their  judgment  of  and  upon  the  premises, 
a  further  day  thereof  is  given  to  the  said  parties, 
before  our  lord  the  king  at  Oxford,  until  Saturday 
on  the  Morrow  of  the  Purification  of  the  Blessed 
Mary  to  hear  their  judgment  of  and  upon  the 
premises,  because  the  court  of  our  said  lord  the 
king  now  here  is  thereof  not  yet,  &c. ;  before 
which  day  the  said  plaint  was  adjourned  by  our 
said  lord  the  king's  writ  of  common  adjournment 
before  our  said  lord  the  king,  until  the  said  Mor- 
row of  the  Purification  of  the  Blessed  Mary,  at 
the  castle  of  Windsor,  in  the  county  of  Berks  ; 
at  which  day  before  our  lord  the  king,  at  the  said 
castle  of  Windsor,  come  the  said  parties  by  their 
said  attornies.  And  because  the  court  of  our  said 
lord  the  king  now  here  is  not  yet  advised  of  giving 
their  judgment  of  and  upon  the  premises,  a  further 
day  thereof  is  given  to  the  said  parties,  before  our 
lord  the  king,  at  the  said  castle  of  Windsor,  until 
Friday  next,  in  the  octave  of  the  Purification  of 
the  Blessed  Mary,  to  hear  their  judgment  of  and 
upon  the  premises,  because  the  court  of  our  said 
lord  the  king  here  is  thereof  not  yet,  &c.  Before 
which  day  the  said  plaint  was  adjourned  by  our 
said  lord  the  king's  writ  of  common  adjournment 
before  our  said  lord  the  king,  until  the  said  octave 
of  the  Purification  of  the  Blessed  Mary  at  West- 
minster, in  the  county  of  Middlesex.  At  which 
day,   before  our  lord  the  king  at  Westminster, 


APPENDIX  439 

come  the  parties  aforesaid  by  their  attornies  afore- 
said. And  because  the  court  of  our  said  lord  the 
king  here  is  not  yet  advised  of  giving  their  judg- 
ment of  and  upon  the  premises,  a  further  day 
thereof  is  given  to  the  said  parties  before  our 
lord  the  king  at  Westminster,  until  Monday  next 
after  the  Morrow  of  the  Ascension  of  our  Lord,  to 
hear  their  judgment  of  and  upon  the  premises, 
because  the  court  of  our  said  lord  the  king  here  is 
thereof  not  j^et,  &c.  At  which  day,  before  our 
lord  the  king  at  Westminster,  come  the  parties 
aforesaid  by  their  attornies  aforesaid.  (Further 
continuances  for  two  terms.)  At  which  day,  before 
our  lord  the  king  at  Westminster,  come  the  parties 
aforesaid  by  their  attornies  aforesaid.  And  there- 
upon the  premises  being  seen,  and  by  the  court  here 
fully  understood,  it  seems  to  the  said  court  that 
the  said  plea  by  him  the  said  John  Planner,  in, 
manner  and  form  aforesaid  above  pleaded,  and  the 
matter  in  the  same  contained,  are  good  and  suffi- 
cient in  law  to  bar  the  said  Henry  Hawe  from 
having  his  said  action  thereof  against  him  the 
Judgment.  said  John  Planner.  Therefore  it  is  considered 
that  the  said  Henry  Hawe  take  nothing  by  the 
bill ;  and  that  he  and  his  pledges  of  prosecution, 
to  wit,  John  Doe  and  Richard  Roe,  be  thereof  in 
mercy  for  his  false  claim,  and  that  the  said  John 
Planner  go  thereof  without  day,  &o. 

1  Saunders'  Reports,  10. 


440  COMMON-LAW  PLEADING. 


II. 


ACTION   FOE  TRESPASS   (q.  c.  f.)  BY  OEIGINAL  IN 
KING'S   BENCH. 

MELLOR  versus  SPATEMAN. 
Pasch.  21  Car.  II.  Regis,  Roll.  249. 

Derbyshire,  )  John  Spateman  late  of  Derby  in  the 
to  wit.  )  said  county  gent,  was  attached  to 
answer  Henry  Mellor  gent,  of  a  plea  wherefore 
with  force  and  arms  he  broke  and  entered  the 
■close  of  the  said  Henry,  called  Littlefield,  at 
Derby  aforesaid,  and  his  grass  then  and  there 
lately  growing,  with  feet  in  walking,  and  with 
his  cattle  eat  up,  trod  down,  and  consumed,  and 
other  wrongs  to  him  did,  to  the  great  damage, 
&c.,  and  against  the  peace  of  our  said  lord  the 
now  king,  &c.  And  whereupon  the  said  Henry, 
by  Alvered  Motteram  his  attorney,  complains  that 
the  said  John,  on  the  20th  day  of  October  in 
the  20th  year  of  the  reign  of  our  said  lord  Charles 
the  Second  now  king  of  England,  &c.  with  force 
and  arms,  &c.,  broke  and  entered  the  said  close 
at  Derby  aforesaid  in  the  county  aforesaid,  and 
his  grass,  to  the  value  of  100  shillings,  then  and 
there  lately  growing,  with  his  feet  in  walking, 
and  with  his  cattle,  to  wit,  horses,  bulls,  cows, 
sheep,  and  swine,  eat  up,  trod  down,  and  con- 
sumed, and  other  wrongs,  &c.,  to  the  great  dam- 
age, &c.,  and  against  the  peace,  &c. ;  wherefore 
he  says  that  he  is  worse,  and  has  damage  to  the 
value  of  20^. ;  and  therefore  he  brings  suit,  &c. 
Plea.  And  the  said  John  Spateman,  by  John  Chambers 

his  attorney,  comes  and  defends  the  force  and 
injury  when,  &c. ;  and  as  to  the  coming  with  force 
and  arms,  or  whatever  else  is  against  the  peace  of 
our  said  lord  the  now  king,  and  also  the  whole 
trespass   aforesaid  with   the    said   cattle,    except 


APPENDIX. 


441 


Locus  in  quo 
part  of  Little- 
field, 


Derby  an  an- 
cient borough, 
and  defendant  a 
burgess  of  it. 


The  burgesses 
of  the  said  bor- 
ough were  imme- 
morial ly  a  body 
corporate  bj'  the 
name  of  Bailiffs, 
&c.  until  11th 
July,  14  Car.  L; 
then  they  were 
incorporated  by 
the  name  of  the 
mayor  and  bur- 
gesses of  the  bor- 
ough of  Derby ; 


with  two  geldings  and  two  mares,  lie  the  said  John 
Spateman  says  that  he  is  not  thereof  guilty,  and 
of  this  he  puts  himself  upon  the  country  ;  and  the 
said  Henry  thereof  likewise,  &c. :  and  as  to  the  said 
trespass  with  two  geldings  and  two  mares,  and 
with  feet  in  walking,  above  supposed  to  be  done, 
he  the  said  John  Spateman  says,  that  he  the 
said  Henry  ought  not  to  have  or  maintain  his  said 
action  thereof  against  him,  because  he  says  that 
the  said  close,  and  also  the  place  in  which  the  said 
trespass  is  above  supposed  to  be  done,  are,  and  at 
the  said  time  when,  &c.,  were,  20  acres  of  land 
with  the  appurtenances,  in  Derby  aforesaid,  which 
said  20  acres  of  land  with  the  appurtenances,  are, 
and  at  the  said  time  when,  &c.,  and  also  from 
time  whereof  the  memory  of  man  is  not  to  the 
contrary,  were  parcel  of  a  certain  common  field 
called  Littlefield,  in  Derby  aforesaid.  And  the 
said  John  Spateman  further  says,  that  the  borough 
of  Derby  in  the  county  of  Derby  is  an  ancient 
borough ;  and  that  he  the  said  John  Spateman 
is,  and  at  the  said  time  when,  &c.  and  long  be- 
fore was,  and  yet  is  one  of  the  burgesses  of  the 
said  borough;  and  that  the  burgesses  of  the  said 
borough,  from  time  whereof  the  memory  of  man  is 
not  to  the  contrary,  until  the  11th  day  of  July  in 
the  14th  year  of  the  reign  of  the  lord  Charles  the 
First,  late  king  of  England,  were  a  body  politic 
and  corporate  by  the  name  of  the  bailiffs  and 
burgesses  of  the  borough  of  Derby,  and  by  the 
said  name  were  used  to  plead  and  be  impleaded. 
And  the  said  John  Spateman  further  saith,  that  in 
and  upon  the  11th  day  of  July  in  the  14th  year  of 
the  reign  of  the  lord  Charles  the  First,  late  king 
of  England,  &c,,  the  said  lord  the  king  Charles  the 
First  by  his  letters  patent  made  under  his  great 
seal  of  England,  bearing  date  at  Westminster  the 
said  11th  day  of  July  in  the  said  14th  year  of  his 
reign,  constituted  and  created  the  bailiffs  and 
burgesses  of  the  said  borough  to  be  from  thence- 
forth forever  a  corporation  by  the  name  of  the 
mayor  and  burgesses  of  the  borough  of  Derby 
aforesaid,  as  by  the  said  letters  patent,  which  he 


442 


COMMON-LAW   PLEADING. 


and  prescribes  in 
the  said  corpora- 
tion for  a  right  of 
common  in  Little- 
field  as  one  of 
the  burgesses ; 


and  put  his  cattle 
into  the  common. 


Demurrer 


the  said  John  brings  here  into  court,  more  fully 
appears.  And  the  said  John  further  says,  that 
the  bailiffs  and  burgesses  of  the  said  borough  from 
time  whereof  the  memory  of  man  is  not  to  the 
contrary  until  the  said  11th  day  of  July  in  the  14th 
year  of  the  reign  of  the  said  lord  Charles  the  First, 
and  the  mayor  and  burgesses  of  the  said  borough, 
upon  the  said  11th  day  of  July  in  the  14th  year 
aforesaid,  and  continually  afterwards  hitherto, 
have  had,  and  for  the  whole  time  aforesaid  have 
been  accustomed  to  have,  for  themselves  and  every 
burgess  of  the  said  borough,  common  of  pasture  in 
the  said  field  called  Littlefield  whereof,  &c.,  for  all 
their  commonable  cattle ;  that  is  to  say,  in  every 
two  years  running  together,  when  the  said  field 
called  Littlefield  whereof,  &c.,  was  sown  with  any 
corn,  after  the  said  corn  growing  in  the  said 
field  called  Littlefield,  whereof,  &c.,  was  reaped, 
gathered,  and  carried  away,  until  the  said  field,  or 
some  part  thereof,  should  be  resown  with  any 
corn ;  and  in  every  third  year  when  the  said 
field  called  Littlefield  whereof,  &c.,  lay  fresh  and 
fallow,  then  during  the  whole  year.  Whereupon 
the  said  John  Spateman  at  the  said  time  when, 
&c.,  because  the  corn  in  that  year  growing  in  the 
said  field  called  Littlefield  whereof,  &c,,  was  then 
reaped,  gathered,  and  from  thence  carried  away, 
and  no  part  of  the  said  field  called  Littlefield 
whereof,  &c.,  was  resown  with  any  corn,  put  the 
said  two  geldings  and  two  mares,  which  said  two 
geldings  and  two  mares  were  the  proper  cattle  of 
him  the  said  John  Spateman,  into  the  said  field 
called  Littlefield  whereof,  &c.,  to  depasture  the 
grass  then  growing  in  the  same,  to  use  his  said 
common,  and  the  said  grass  then  growing  in  the 
said  close  in  which,  &c.,  with  the  said  geldings 
and  mares,  and  with  his  feet  in  walking  at  the 
said  time  when,  &c.,  &c.,  eat  up,  trod  down,  and 
consumed,  as  it  was  lawful  for  him  to  do  for  the 
cause  aforesaid ;  and  this  he  is  ready  to  verify : 
wherefore  he  prays  judgment  if  the  said  Henry 
ought  to  have  or  maintain  his  said  action  thereof 
against  him,  &c. —  (To  this  there  is  a  general  de- 


APPENDIX. 


443 


Curia  advisare 
vult. 


And  as  well  as 
to  try  the  said 
issue  as  to  in- 
quire of  contin- 
gent damages  on 
the  demurrer. 


Venire 
awarded. 


Curia  ulterius 
advisare  vult. 


Vic.  non  misit 
breve. 


Alias  venire. 


murrer,  and  a  joinder  in  demurrer,  and  then  the 
entry  proceeds.) 

But  because  the  court  of  our  said  lord  the  king 
now  here  is  not  yet  advised  of  giving  their  judg- 
ment of  and  upon  the  premises,  a  day  thereof  is 
given  to  the  said  parties  before  our  lord  the  king 
at  Westminster,  until  day  next  after 

to  hear  their  judgment  of  and  upon  the  premises, 
because  the  court  of  our  said  lord  the  king  now 
here  is  not  yet,  &c.  And  as  well  to  try  the  said 
issue  above  joined  between  the  said  parties  to  be 
tried  by  the  country,  as  to  inquire  what  damages 
the  said  Henry  Mellor  has  sustained  on  occasion 
of  the  said  trespass,  whereof  the  said  parties  have 
put  themselves  upon  the  judgment  of  the  court, 
if  it  happen  that  judgment  shall  be  thereof  given 
for  the  said  Henry  against  the  said  John  Spate- 
man,  let  a  jury  thereof  come  before  our  lord  the 
king  at  Westminster,  on  day  next  after 

and  who  neither,  &c.,  to  recognize,  &c. ;  because 
as  well,  &c. :  the  same  day  is  given  to  the  said 
parties  there,  &c.  At  which  day  here  came  as 
well  the  said  Henry  as  the  said  John  by  their 
attornies  aforesaid.  And  because  the  court  here 
is  not  yet  advised  of  giving  their  judgment  of 
and  upon  the  premises  whereof  the  said  parties 
have  above  put  themselves  on  the  judgment  of  the 
court,  a  day  thereof  is  further  given  to  the  said 
parties  before  our  said  lord  the  king,  from  the  day 
of  St.  Michael  in  three  weeks  wheresoever,  &c., 
to  hear  their  judgment  thereof,  because  the  court 
of  our  said  lord  the  king  here  is  thereof  not  yet, 
&c.,  and  as  to  try  the  said  issue  above  joined  be- 
tween the  said  parties  to  be  tried  by  the  country, 
the  sheriff  hath  not  yet  returned  the  writ,  &c.  : 
therefore,  as  before,  the  sheriff  is  commanded  that 
he  cause  to  come  before  our  lord  the  king  at  the 
said  term  wheresoever,  &c.,  twelve,  &c.,  to  recog- 
nise in  form  aforesaid;  the  same  day  is  given  to 
the  said  parties  there,  &c.  At  which  day  here 
come  as  well  the  said  Henry  as  the  said  John  by 
their  said  attornies  ;  and  thereupon  the  premises, 
whereof  the  said  parties  have  above  put  them- 


444 


COMMON-LAW  PLEADING. 


Judgment. 


Nolle  prosequi 
as  to  the  issue. 


"Writ  of  in- 
quiry of  damages 
awarded. 


selves  on  the  judgment  of  the  court,  being  seen, 
and  by  the  court  here  fully  understood,  and  ma- 
ture deliberation  thereof  had,  for  that  it  appears 
to  the  court  of  our  said  lord  the  king  here,  that 
the  said  plea  of  the  said  John,  as  to  the  said 
trespass  with  the  said  two  geldings  and  two  mares, 
and  with  feet  in  walking,  above  supposed  to  be 
done  by  the  said  John  in  manner  and  form  afore- 
said above  pleaded,  are  not  sufficient  in  law  to  bar 
the  said  Henry  from  having  his  said  action  thereof 
against  the  said  John,  it  is  considered  that  the 
said  Henry  should  recover  his  damages  against 
the  said  John  on  occasion  of  the  said  trespass 
committed  with  the  said  two  geldings  and  two 
mares,  and  with  feet  in  walking,  &c.  And  as  to 
the  trial  of  the  said  issue  above  joined  between  the 
said  parties  to  be  tried  by  the  country,  the  sheriff 
has  not  returned  his  writ,  &c. :  and  thereupon  he 
the  said  Henry  freely  here  in  court  acknowledges, 
that  he  will  not  any  further  prosecute  against  the 
said  John  for  the  said  residue  of  the  said  trespass 
above  supposed  to  be  done,  but  altogether  disavows 
and  refuses  any  further  to  prosecute  against  the 
said  John  for  the  said  residue  of  the  said  trespass ; 
therefore  let  the  said  John  be  thereof  quit,  &c. : 
and  the  said  Henry  prays  judgment,  and  his 
damages  on  occasion  of  the  said  trespass  com- 
mitted with  the  said  two  geldings  and  two  mares, 
and  with  feet  in  walking,  to  be  given  to  him 
against  the  said  John.  But  because  it  is  not 
known  to  the  court  of  our  said  lord  the  king  now 
here  what  damages  the  said  Henry  has  sustained, 
as  well  on  the  occasion  of  the  said  trespass  as  for 
his  costs  and  charges  by  him  about  his  suit  in  that 
behalf  expended,  therefore  the  sheriff  is  com- 
manded that,  by  the  oath  of  good  and  lawful  men 
of  his  bailiwick,  he  diligently  inquire  what  dam- 
ages he  the  said  Henry  has  sustained  as  well  on 
occasion  of  the  said  trespass  with  the  said  two 
geldings  and  two  mares,  and  with  feet  in  walking, 
as  for  his  costs  and  charges  by  him  about  his  suit 
in  that  behalf  expended,  and  the  inquisition  which, 
&c.,  should  send  to  our  said  lord  the  king,  in  the 


APPENDIX. 


445 


Inquisition  re- 
turned. 


Judgment. 


octave  of  St.  Hilary  wheresoever,  &c.,  under  the 
seal,  &c.,  and  seals,  &c.,  together  with  the  writ  of 
our  said  lord  the  king  to  him  thereof  directed. 
The  same  day  is  given  to  the  said  Henry  there, 
&c.  At  which  day,  before  our  lord  the  king  at 
Westminster,  comes  the  said  Henry  Mellor  by  his 
said  attorney ;  and  the  sheriff,  to  wit,  Cornelius 
Clarke  esquire,  returns  a  certain  inquisition,  in- 
dented, taken  before  him  at  Derby  in  the  county 
of  Derby,  on  the  28th  day  of  January  in  the  21st 
year  of  the  reign  of  our  said  lord  the  now  king,  by 
the  oath  of  twelve  good,  &c.,  whereby  it  is  found 
that  the  said  Henry  Mellor  hath  sustained  dam- 
ages on  the  occasion  aforesaid,  besides  his  costs 
and  charges  by  him  about  his  suit  in  that  behalf 
expended,  to  two  pence ;  and  for  those  costs  and 
charges,  to  two  pence  :  therefore  it  is  considered 
that  the  said  Henry  do  recover  against  the  said 
John  his  said  damages  by  the  said  inquisition  in 
form  aforesaid  found,  and  also  eight  pounds  nine- 
teen shillings  and  eight  pence  for  his  said  costs 
and  charges  of  increase  adjudged  to  the  said 
Henry  by  the  court  of  our  said  lord  the  king  now 
here  with  his  assent ;  which  said  damages  in  the 
whole  amount  to  nine  pounds  :  and  let  the  said 
John  Spateman  be  taken,  &c. 

1  Saunders'  Eeports,  339. 


446  COMMON-LAW  PLEADING. 


ni. 

WEIT  OF  EKEOR  IN   KING'S  BENCH  TO  COUNTY 
OF  DURHAM  (A  COUNTY  PALATINE). 

PEACOCK  versus  BELL  AND   KENDAL. 
Mich.  18  Car.  II.  Kegis,  RoU.  230. 

Writ  of  Error.  England,  ]  Our  lord  the  king  has  sent  to  his  jus- 
to  wit.  J  tices  itinerant,  in  the  county  of  Durham 
and  Sadberg,  and  other  his  justices  in  the  same 
county,  and  to  every  of  them,  his  writ  close  in  these 
words,  to  wit :  Charles  the  Second,  by  the  Grace  of 
God,  of  England,  Scotland,  France,  and  Ireland,  king, 
defender  of  the  faith,  &c.,  to  our  justices  itinerant  in 
the  county  of  Durham  and  Sadberg,  and  to  our  other 
justices  in  the  same  county,  and  to  every  of  them, 
greeting  ;  forasmuch  as  in  the  record  and  process, 
and  also  in  the  giving  of  judgment  of  the  plaint 
which  was  before  you  in  our  court,  in  the  said 
county,  by  our  writ  between  Richard  Bell  and 
Benjamin  Kendal,  and  John  Peacock  alderman,  of 
a  certain  plea  of  trespass  upon  the  case,  done  by 
the  said  John  to  the  said  Richard  and  Benjamin, 
manifest  error  has  intervened,  as  it  is  said,  to  the 
great  damage  of  the  said  John,  as  from  his  com- 
plaint we  have  been  informed.  We,  being  willing 
that  the  error,  if  any  there  be,  should  be  duly 
amended,  and  full  and  speedy  justice  done  to  the 
said  parties  in  this  behalf,  command  you,  that  if 
judgment  be  thereon  given,  you  send  to  us,  openly 
and  distinctly,  under  your  seal,  the  said  record  and 
process,  with  all  things  touching  the  same,  and  this 
writ,  so  that  we  may  have  the  same  from  the  day 
of  St.  Martin,  in  fifteen  days,  wheresoever  we 
shall  then  be  in  England,  that  inspecting  the  said 
record  and  process  we  cause  further  to  be  done 
therein  for  amending  the  said  error,  what  of  right, 
and  according  to  the  law  and  custom  of  our  realm 


APPENDIX. 


447 


Warrant  of  at- 
torney by  the 
plaintiffs. 


Like  for  the  de- 
fendant. 


Declaration. 

Recital  of  the 
writ. 


of  England,  shall  be  meet  to  be  done.  Witness 
ourself  at  Westminster,  the  24th  day  of  August,  iu 
the  18th  year  of  our  reign. 

On  the  24th  day  of  September,  in  the  18th  year 
of  king  Charles  the  Second,  by  the  court ;  the 
answer  of  the  justices  of  our  lord  the  king  within 
written ;  the  execution  of  this  writ  appears  in  a 
certain  schedule  annexed  to  this  writ.  John  Tem- 
pest, John  Morland.  This  writ  is  allowed  by  us, 
John  Tempest,  William  Bellasys,  John  Morland. 

Durham,  to  wit.  Pleas  at  Durham,  before  W. 
Blakiston,  esq.,  Samuel  Davison,  esq.,  William 
Bellasys  senior,  esq.,  Lewis  Hall,  esq.,  and  John 
Morland,  esq.,  and  their  fellows,  justices  itinerant 
of  our  lord  the  now  king,  in  the  county  of  Dur- 
ham and  Sadberg,  of  his  session  or  court  of  pleas 
holden  at  Durham  the  6th  day  of  June,  in  the  18th 
year  of  the  reign  of  our  lord  Charles  the  Second, 
by  the  grace  of  God,  of  England,  Scotland,  France, 
and  Ireland,  king,  defender  of  the  faith,  &c. 

Durham,  to  wit.  Richard  Bell  and  Benjamin 
Kendal  put  in  their  place  Ralph  Adamson  their 
attorney  against  John  Peacock,  late  of  the  city  of 
Durham,  iu  the  said  County,  alderman,  of  a  plea 
of  trespass  upon  the  case. 

Durham,  to  wit.  John  Peacock,  late  of  the  city 
of  Durham,  in  the  said  county,  alderman,  puts  in 
his  place  Christopher  Bell,  his  attorney,  against 
the  said  Richard  Bell  and  Benjamin  Kendal,  of  a 
plea  of  trespass  upon  the  case. 

Durham,  to  wit.  John  Peacock,  late  of  the  city 
of  Durham,  in  the  said  county,  alderman,  was 
attached  to  answer  Richard  Bell  and  Benjamin 
Kendal,  of  a  plea,  wherefore,  whereas  the  said 
John,  on  the  11th  day  of  November,  in  the  17th 
year  of  the  reign  of  our  lord  Charles  the  Second, 
now  king  of  England,  &c.,  at  the  city  of  Durham, 
in  the  said  county,  was  indebted  to  the  said 
Richard  and  Benjamin  in  39^.  of  lawful  money 
of  England,  for  divers  wares  and  merchandises  by 
the  said  Richard  and  Benjamin  before  that  time 
sold  and  delivered  to  the  said  John  Peacock  at  his 
special  instance  and  request;   and  being   so  in- 


448  COMMON-LAW  PLEADING. 

debtee!,  he  tlie  said  John,  in  consideration  thereof, 
undertook,  and  then  and  there  faithfully  promised 
the  said  Richard  and  Benjamin,  that  he  the  said 
John  Peacock  would  well  and  faithfully  pay  and 
content  the  said  391.  to  the  said  Richard  and  Ben- 
jamin when  he  should  be  thereunto  requested ; 
yet  the  said  John  not  regarding  his  said  promise 
and  undertaking  in  form  aforesaid  made,  but  con- 
triving and  fraudulently  intending  craftily  and 
subtily  to  deceive  and  defraud  them  the  said 
Richard  and  Benjamin  of  the  said  39^.  has  not 
yet  paid  the  said  39/.  or  any  penny  thereof,  to 
the  said  Richard  and  Benjamin,  or  any  ways  con- 
tented them  for  the  same,  (although  so  to  do  the 
said  John  afterwards,  to  wit,  on  the  last  day  of 
November,  in  the  said  17th  year  of  the  reign 
of  our  lord  Charles  the  Second,  now  king  of  Eng- 
land, &c.,  at  the  city  of  Durham,  in  the  said 
county,  was  often  requested  by  the  said  Richard 
and  Benjamin),  but  to  pay  the  same  to  them,  or 
in  any  ways  to  content  them  for  the  same,  has 
altogether  refused,  and  still  refuses,  to  the  damage 
of  the  said  Richard  and  Benjamin  of  40/.  &c. 
And  whereupon  the  said  Richard  and  Benjamin, 
by  Ralph  Adamson  their  attorney,  complain,  that 
whereas  the  said  John,  on  the  11th  day  of  No- 
vember, in  the  17th  year  of  the  reign  of  our  lord 
Charles  the  Second,  now  king  of  England,  &c.,  at 
the  city  of  Durham,  in  the  said  county,  was  in- 
debted to  the  said  Richard  and  Benjamin  in  39/. 
of  lawful  money  of  England,  for  divers  wares  and 
merchandises  by  the  said  Richard  and  Benjamin 
before  that  time  sold  and  delivered  to  the  said 
John  Peacock  at  his  special  instance  and  request ; 
and  being  so  indebted,  he  the  said  John,  in  con- 
sideration thereof,  undertook,  and  then  and  there 
faithfully  promised  the  said  Richard  and  Ben- 
jamin, that  he  the  said  John  Peacock  would  well 
and  faithfully  pay  and  content  the  said  39/.  to  the 
said  Richard  and  Benjamin  when  he  should  be 
thereunto  requested ;  yet  the  said  John,  not  re- 
garding his  said  promise  and  undertaking  in  form 
aforesaid  made,  but  contriving   and   fraudulently 


APPENDIX. 


449 


intending  craftily  and  subtily  to  deceive  and  de- 
fraud them  the  said  Richard  and  Benjamin  of  the 
said  39Z.  has  not  yet  paid  the  said  39^.  or  any 
penny  thereof,  to  the  said  Richard  and  Benjamin, 
or  any  ways  contented  them  for  the  same,  (al- 
though so  to  do  the  said  John  afterwards,  to  wit, 
on  the  last  day  of  November,  in  the  said  17th  year 
of  the  reign  of  our  lord  Charles  the  Second,  now 
king  of  England,  &c.,  at  the  city  of  Durham,  in 
the  said  county,  was  often  requested  by  the  said 
Richard  and  Benjamin),  but  to  pay  the  same  to 
them,  or  in  any  ways  to  content  them  for  the  same 
has  altogether  refused,  and  still  refuses,  to  the 
damage  of  the  said  Richard  and  Benjamin  of  40^. 
&c. ;  and  therefore  they  bring  suit,  &c. 

Imparlance.  And  the   said   John   by   Christopher  Bell,   his 

attorney,  comes  and  defends  the  wrong  and  injury 
when,  &c.  and  prays  leave  to  imparl  thereto  here, 
until  the  23d  day  of  June  instant,  and  he  has  it, 
&c. ;  the  same  day  is  given  to  the  said  Richard 
and  Benjamin  here,  &c.  At  which  day  here  come 
as  well  the  said  Richard  and  Benjamin  as  the  said 
John,  by  their  said  attornies  ;  and  thereupon  the 
said  John  further  prays  leave  to  imparl  thereto 
here,  until  the  14th  day  of  July  next  following ; 
and  he  has  it,  &c. ;  the  same  day  is  given  to  the 
said  Richard  and  Benjamin  here,  &c.  At  which 
day  here  come  as  well  the  said  Richard  and  Ben- 
jamin as  the  said  John,  by  their  said  attornies  ; 
and  thereupon  the  said  John  further  prays  leave 
to  imparl  here,  until  the  30th  day  of  July  in- 
stant ;  and  he  has  it,  &c. ;  the  same  day  is  given 
to  the  said  Richard  and  Benjamin  here,  &c.  At 
which  day  here  come  as  well  the  said  Richard 
and  Benjamin  as  the  said  John,  by  their  said 
attornies ;  and  thereupon  the  said  Richard  and 
Benjamin  pray  that  the  said  John  may  answer  the 

Plea.  said  declaration.     And  the  said  John,  as  before, 

defends  the  wrong  and  injury  when,  &c.  and  says, 

Non  assumpsit,  that  he  did  not  undertake  and  promise  in  manner 
and  form  as  the  said  Richard  and  Benjamin  have 

Issue.  above  thereof  complained  against  him  ;  and  of  this 

he  puts  himself  upon  the  country,  &c.     And  the 

29 


450 


COMMON-LAW   PLEADING. 


Venire.  said  Richard  and  Benjamin  likewise,  &c.     There- 

fore the  sheriff  is  commanded  that  he  cause  to 
come  here  on  Thursday  the  16th  day  of  August 
next  coming,  at  eight  o'clock  in  the  forenoon  of 
the  same  day,  twelve,  &c.,  by  whom,  &c.,  and  who 
neither,  &c.,  to  recognize,  &c.,  because  as  well,  &c. 
At  which  day  and  hour  here  come  as  well  the  said 
Richard  and  Benjamin  as  the  said  John,  by  their 
said  attornies  ;  and  the  sheriff,  to  wit,  Thomas 
Davison  knight,  now  returns  the  said  writ  of 
our  lord  the  king  of  venire  facias  to  him  in  form 
aforesaid  directed,  together  with  a  panel  of  the 
names  of  the  jurors  annexed  to  the  same,  in  all 
things  served  and  executed;  and  the  jury  im- 
panelled thereon,  being  called,  do  not  come ;  there- 

Habeas  cor-  fore  the  sheriff  is  commanded  that  he  have  their 
pora  juratorum.  bodies  here  the  same  Thursday  the  16th  day  of 
August,  instant,  at  two  o'clock  in  the  afternoon 
of  the  same  day  ;  the  same  day  and  hour  are  given 
to  the  said  parties  here,  &c.  At  which  day  and 
hour  come  as  well  the  said  Richard  and  Benjamin 
as  the  said  John,  by  their  said  attornies ;  and  the 
sheriff,  to  wit,  Thomas  Davison  knight,  now  re- 
turns here  the  said  writ  of  habeas  corpora  jura- 
torum to  him  in  form  aforesaid  directed,  together 
with  a  panel  of  the  names  of  the  jurors  thereto 
annexed,  in  all  things  served  and  executed ;  and 
the  jury  impanelled  therein,  being  called,  likewise 
come  ;  and  being  chosen,  tried,  and  sworn  to  speak 
the  truth  of  the  premises,  upon  their  oath  say, 

Verdict  for  the  that  the  said  John  did  undertake  and  promise  in 


plaintiffs. 


Judgment  for 
tlie  plaintiffs. 


manner  and  form  as  the  said  Richard  and  Ben- 
jamin have  above  declared  against  him ;  and  they 
assess  the  damages  of  the  said  Richard  and  Ben- 
jamin, on  occasion  of  the  non-performance  of  the 
said  promise  and  undertaking,  besides  their  costs 
and  charges  by  them  about  their  suit  in  that  be- 
half expended,  to  30Z.  lis.  2d.  and  for  those  costs 
and  charges  to  40s.  Therefore  it  is  considered  that 
the  said  Richard  and  Benjamin  recover  against  the 
said  John  their  said  damages  to  32Z,  lis.  2d.  by 
the  said  jurors  in  form  aforesaid  assessed,  and 
also  51.  by  the  court  here  awarded  of  increase  to 


APPENDIX. 


451 


Error. 

General  error 
assigned. 


Scire  facias. 


Vicecomes  non 
misit  breve. 


the  said  Eichard  and  Benjamin  at  their  request, 
for  their  said  costs  and  charges,  which  said  dam- 
ages in  the  whole  amount  to  371.  lis.  2d. ;  and  the 
said  John  in  mercy,  &c. 

Afterwards,  to  wit,  on  Wednesday  next  after 
the  octave  of  St.  Hilary  then  next  following,  be- 
fore our  lord  the  king  at  Westminster,  comes  the 
said  John  Peacock  by  W.  Bigg,  his  attorney,  and 
says,  that  in  the  said  record  and  process,  and  also 
in  giving  the  judgment  aforesaid,  there  is  manifest 
error  in  this,  that  it  appears  by  the  said  record 
that  the  said  judgment  was  given  for  the  said 
E/ichard  Bell  and  Benjamin  Kendal  against  the 
said  John  Peacock ;  whereas  judgment  ought  by 
the  law  of  the  land  to  have  been  given  for  the  said 
John  Peacock  against  the  said  Richard  Bell  and 
Benjamin  Kendal,  therefore  in  that  there  is  mani- 
fest error ;  and  the  said  John  Peacock  prays  the 
writ  of  our  said  lord  the  king  to  warn  the  said 
Eichard  Bell  and  Benjamin  Kendal  to  be  before 
our  lord  the  king  to  hear  the  record  and  process 
aforesaid,  and  it  is  granted  to  him,  &c.  Where- 
upon the  sheriff  is  commanded,  that  by  good,  &c., 
he  make  known  to  the  said  Eichard  Bell  and 
Benjamin  Kendal  that  they  be  before  our  lord 
the  king  on  the  octave  of  the  Purification  of  the 
Blessed  Virgin  Mary,  wheresoever,  &c.,  to  hear  the 
said  record  and  process,  if,  &c.,  and  further,  &c., 
the  same  day  is  given  to  the  said  John  Peacock, 
&c.  At  which  day,  before  our  lord  the  king  at 
Westminster,  comes  the  said  John  Peacock  by  his 
said  attorney,  and  the  sheriff  has  not  sent  the  writ 
thereof,  &c.  And  the  said  Eichard  Bell  and  Ben- 
jamin Kendal  on  the  same  day  being  solemnly 
called,  likewise  come  by  A.  B.  their  attorney: 
whereupon  the  said  John  Peacock,  as  before,  says 
that  in  the  said  record  and  process,  and  also  in 
giving  the  said  judgment,  there  is  manifest  error, 
alleging  the  said  errors  by  him  in  form  aforesaid 
alleged,  and  prays  that  the  said  judgment,  for  the 
said  errors,  and  others  being  in  the  said  record  and 
process,  may  be  revoked,  annulled,  and  entirely 
held  for  nothing,  and  that  he  may  be  restored  to 


452  COMMON-LAW  PLEADING. 

all  things  which  he  has  lost  by  occasion  of  the 
said  judgment ;  and  that  the  court  of  our  said  lord 
the  king  here  may  proceed  as  well  to  the  examina- 
tion of  the  said  record  and  process,  as  of  the  said 
matter  above  assigned  for  error ;  and  that  the 
said  Richard  Bell  and  Benjamin  Kendal  may  re- 
Nullo  est  erra-  join  to  the  said  errors,  &c.  Whereupon  the  said 
^"°^-  Richard    Bell    and    Benjamin    Kendal    say,    that 

neither  in  the  said  record  and  process,  nor  in 
giving  the  said  judgment,  is  there  any  error  ;  and 
they  pray  that  the  court  of  our  said  lord  the  king 
here  may  proceed  as  well  to  the  examination  of 
the  said  record  and  process,  as  of  the  said  matters 
above  assigned  for  errors. 

1  Saunders'  Eeports,  69. 


INDEX. 


ABATEMENT, 

of  nuisances,  a  method  of  self-help,  16. 
of  actions, 

by  death,  of  a  sole  party,  62. 

at  common  law,  62,  118n.,  396. 
under  the  statute,  17  Car.  II.  c.  8,  62. 
of  a  tort-feasor,  114,  118  n. 
by  the  king's  demise,  140. 

ABATEMENT,   PLEA   IN, 

for  non-joinder  or  misjoinder  of  parties,  112,  135,  136,  176,  177. 
of  the  writ,  a  dilatory  plea,  175.     (See  Pleas.) 

for  variance,  176,  178. 

when  former  action  is  pending,  176. 
to  the  person  of  the  plaintiff,  or  of  the  defendant,  176. 
to  the  count  or  declaration,  177. 
to  the  original  writ,  177. 
applies  to  proceedings  by  bill,  178. 
effect  of  allowing,  178,  217. 
verification  of,  178. 

when  overruled  on  demurrer,  judgment  of  respondeat  ouster,  235. 
mistake  in  name  of  person,  when  ground  for,  340. 
commencement  and  conclusion  of,  396,  400, 
must  give  a  better  writ  or  bill,  424. 

ABSQUE   HOC,  255,  256,  260,  263,  266,  388. 
ACCORD, 

a  method  of  self-help,  17. 

ACCOUNT, 

a  formed  action  ex  contractu,  48,  60. 
ACT   OF   PARLIAMENT, 

illegality  arising  from,  matter  for  special  plea,  245. 

ACTIONS.     (See  Mixed  Actions  ;  Personal  Actions ;  Real  Actions.) 
origin  and  history  of,  24,  38. 
forms  of,  38-108. 

formerly  rigid,  and  forms  prevailed  over  rights,  22-24,  38. 
division  of,  into  real,  personal,  and  mixed  actions,  40-48. 
local  and  transitory  actions,  329-334. 


454  INDEX. 

ACTIONS  —  continued. 
Personal  actions  divided : 

(1)  formed  actions  ex  contractu, 
debt,  48-55.     (See  Debt.) 
detinue,  48,  55-57.     (See  Detinue.) 
covenant,  48,  .57-60.     (See  Covenant.) 
account,  48,  60. 

scire  facias,  48,  60-63.     (See  Scire  facias.) 

(2)  formed  actions  ex  delicto, 

trespass,  63-73,  100,  101.     (See  Trespass.) 

replevin,  63,  73-77.     (See  Replevin.) 
the  formed  actions  inadequate,  77,  83. 
upon  the  case,  77-82.     (See  Case,  Action  upon  the.) 
nev?  forms  of, 

assumpsit,  79,  82-89.     (See  Assumpsit.) 

trover,  79,  90-93.     (See  Trover.) 
Mixed  actions  divided: 

waste,  45. 

quare  impedit,  45. 
ejectment,  93-99. 

for  mesne  profits,  100. 
consequences  of  mistake  in  form  of  action,  101. 
extraordinary  forms  of,  102-108. 
joinder,  of  forms  of  actions,  109,  110. 

of  rights  of  action,  110,  111. 
election  of,  111-115.     (See  Election.) 
parties  to,  116-136.     (See  Par-ties.) 
the  original  writ,  137-148. 

proceedings  in,  148-225.     (See  Issue  ;  Judgment ;  Pleading  ;  Process.) 
pleas  in  suspension  of,  175,  176,  217. 
ADJECTIVE   LAW, 

formerly  controlled  the  substantive,  24,  38. 
ADMINISTRATOR.     (See  Executor.) 
AGENT.     (See  Principal  and  Agent.) 

ALIEN   ENEMY, 

plea  of,  to  be  certain  in  every  particular,  368. 
ALLEGATION.     (See  Pleading.) 
AMBIGUITY, 

in  pleading,  not  allowed,  383-386.     (See  Pleading.) 
AMENDMENT, 

of  action  to  another  of  same  class,  101. 

of  pleadings,  189,  190,  239. 
leave  for,  190. 

statutes  of,  and  jeofails.     (See  Jeofails.) 
AMERCEMENTS, 

recoverable  in  debt,  50,  52. 

judgment  in  misericordia,  219,  220. 


INDEX.  455 

ANIMALS, 

when  trespass  lies  for  taking  or  injuring,  70,  72. 
injuries  by,  remedy  in  case,  79,  80. 

ANNUITY, 

a  formed  action  ex  contractu,  48  n, 

ANSWER,  169. 

APPEALS,   103,  172. 
to  King's  Bench,  35. 
to  Exchequer  Chamber,  86. 
to  House  of  Lords,  36. 
as  private  prosecutions,  66. 
de  pace  et  plagis,  66,  67. 

APPEARANCE, 

of  defendant,  158,  159,  422. 

ARBITRATION, 

the  source  of  civil  jurisdiction,  13. 

a  method  of  self-help,  18. 

award  does  not  convey  realty,  18. 

debt  lay  upon  an  award,  52. 

also  assumpsit  for  other  performance  than  payment  of  money,  87. 

ARGUMENTATIVENESS, 

in  pleading,  not  allowed,  260,  386-388.     (See  Pleading.) 

ARREST    OF   JUDGMENT.     (See  Judgment.) 
ARSON,  65,  66. 

ASSAULT   AND   BATTERY, 

action  of  trespass  for,  67,  70,  435. 

form  of  original  writ  in,  144. 

declaration  in,  166,  167. 
ASSIZE, 

of  mort  d'ancestor,  43,  172  n. 

of  novel  disseisin,  14,  42-45,  199. 

grand,  199. 

petty,  171,  172,  199,  200. 

giving  color  in,  277. 

defence  not  made  to,  423. 

ASSUMPSIT, 

an  action  of  tort,  developing  into  one  of  contract,  82,  86, 

special,  83,  87,  88. 

general,  85,  87,  88. 

quantum  meruit,  85,  89. 

declaration  in,  86,  89. 

damages  in,  84,  86. 

joinder  of  counts  in,  110. 

election  between,  and  trespass,  or  case,  112,  113,  115. 

general  issue  in,  247,  248 


456  INDEX. 

ATTACHMENT,  149,  158, 
of  privilege,  155,  168. 

ATTORNEY,  22. 

if  negligent,  liable  in  case,  80. 

AUDITA   QUERELA,  102  n. 

AULA   REGIS,   28-33,  137. 

AUTHORITY, 

how  far  the  pleadings  must  show,  355-358. 
averments  of,  to  be  strictly  proved,  358. 

AVERMENT.     (See  Declaration ;  Issue;  Pleading.^ 
AVOWRY,  76. 

of  liberum  tenementum,  351. 

the  statute,  11  Geo.  II.,  c.  19,  §  22,  355. 

commencement  and  conclusion  of,  398. 

AWARD.     (See  Arbitration.) 
alleging  breach  of,  288. 


BAIL,  156. 
BAILMENTS, 

remedies  respecting, 

in  detinue,  56. 

in  trespass,  70,  71. 

in  trover,  92. 
election  of  actions  respecting,  112,  115. 

BANKRUPT, 

as  party  plaintiff,  122,  132. 
defendant,  128,  134. 

BANKRUPTCY,   PLEA   OF,   113. 

BARRISTER, 

to  sign  pleadings,  164. 

BATTLE, 

offer  of,  170. 
trial  by,  195,  196. 

BILL   OF   EXCEPTIONS,  206. 

BILL   OF   MIDDLESEX,  153,  167. 

BLOOD- FEUD,  64,  65. 

BOND.     (See  Debt;  Deed.) 
with  condition,  303  n. 

BOT,  65,  66. 

BURDEN  OF  PROOF, 

usually  rests  upon  party  maintaining  the  affirmative,  204,  258. 


INDEX.  457 

CAPIAS   AD  RESPONDENDUM,  149,  158. 

CAPIAS   IN   WITHERNAM,  74,  106. 

CAPIAS   UTLAGATUM,   151. 

CASE   AGREED,  209. 

CASE,  TRESPASS    UPON   THE,  77-93. 

when  it  lies,  79-82. 

declaration  in,  82. 

trover,  90-93. 

election  between,  and  assumpit,  112,  113,  115. 
and  trespass,  114. 
CASSETER  BREVE,  217,  219. 
CERTAINTY  IN   THE   ISSUE, 

reasons  for,  229  and  n.  2,  372. 

required  as  to  place,  323-334.     (See  Venue.") 
as  to  time,  334-336.     (See  Time.) 

CERTIORARI, 

an  extraordinary  remedy,  107. 
CHANCERY.     (See  Equity.) 

original  writs  issued  from,  39,  139-144,  148. 
in  replevin,  74. 
in  case,  77,  81. 
procedendo,  103. 
prohibition  from,  103. 
mainprize  from,  105. 
CHATTELS, 

recoverable  in  detinue,  56,  57. 
real,  93. 
CHILD, 

injury  to,  remedy  in  trespass,  70. 
seduction  of  female,  70,  80. 
liberty  of,  restored  by  habeas  corpus,  107. 
CIRCUITS,  30,  32,  33. 

CLERGY, 

jurisdiction  over  of  Anglo-Saxon  courts,  26-28. 

COGNIZANCES,  76. 

the  statute  of  11  Geo.  II.  c.  19,  §  22,  355. 
commencement  and  conclusion  of,  398. 

COLOR, 

in  pleading,  273-279.     (See  Confession  and  Avoidance,  Pleas  in.) 

COMMENCEMENT, 

of  pleadings,  392-400.     (See  Pleading.) 
COMMON  BAR,  285,  350. 
COMMON   COUNTS.     (See  Counts.) 

included  what,  and  how  supported,  88,  89. 

joinder  of,  316,  317. 


458  INDEX. 

COMMON  PLEAS,  COURT   OF,  31,  35. 

jurisdiction,  35. 
prohibition  from,  103. 

COMMON   TRAVERSE.     (See  Traverse.) 
a  tender  of  issue,  240,  241. 

COMPOSITION, 

in  lieu  of  vengeance,  64. 

COMPURGATION,  193. 

CONCLUSION, 

of  pleadings,  392-401.     (See  Pleading.") 

CONFESSION   AND   AVOIDANCE,  PLEAS  IN, 

defined  and  explained,  178-181. 

motion  for  judgment  non  obstante  veredicto,  effect  upon,  212,  213. 

in  assumpsit,  248. 

inducement  cannot  be  answered  by,  266. 

division  of,  with  respect  to  their  subject-matter,  into 

pleas  in  justification  or  excuse,  272. 

pleas  in  discharge,  272,  273. 
conclude,  with  a  verification  and  prayer  for  judgment,  273. 
must  give  color  by  admitting  an  apparent  right  and  setting  up  new 
matter  to  defeat  it,  273. 

implied  color,  274. 

express  color,  274-279,  410. 

CONFESSION,  JUDGMENT  BY,  218,  219,  221. 
CONSIDERATION, 

for  contracts,  47,  50,  83. 

originally  a  mere  promise  was  not  a,  50. 

detriment  as  a,  82,  84. 

to  be  pleaded  in  assumpsit,  89. 

CONSTITUTION, 

of  the  United  States,  Art.  I.,  §  9,  par.  2,  107. 

CONSTRUCTION, 

of  pleadings.     (See  Issue  ;  Pleading.) 

CONSULTATION,  WRIT   OF,  104. 

CONTEMPT, 

by  violating  a  procedendo,  103. 
or  a  prohibition,  104. 

CONTINUANCES,  163. 

puis  darreign  continuance,  182,  397. 
imparlances,  187,  188,  449. 

CONTRACT, 

law  of,  not  early  developed,  46,  47. 
under  Roman  law,  46,  47,  429. 
consideration,  47,  50,  82,  83.     (See  Consideration.) 
the  actions  of  debt,  detinue,  and  covenant  preceded  the  idea  of,  48. 


INDEX.  459 

CONTRACT  —  continued. 

formed  actions  upon,  included 

debt,  48-55. 

detinue,  48,  55-57. 

covenant,  48. 

account,  48. 

scire  facias,  48. 
debt  lay,  upon  sealed,  51. 

when  upon  unsealed,  52. 
waiver  of,  by  suing  in  tort,  112,  114. 
suits  upon,  parties  plaintiff,  117-123. 
defendant,  124-130. 

CONTRA  PACEM, 

when  material  words,  in  trespass,  68,  73. 
not  used  in  case,  82. 
CONVERSION.     (See  Trover.) 

CORPORATION, 

mandamus  against,  103. 
as  party  plaintiff,  120,  121. 
defendant,  126,  133. 

COSTS, 

a  part  of  the  judgment,  219. 

COUNT, 

the  plaintiff's  statement  in  real  actions,  164. 

COUNTS, 

several, 

when  they  may  be  joined  without  duplicity,  313-317. 
the  object  of  using,  315,  316. 
common  money  counts,  89,  316,  317. 

COUNTERPLEAS,  188. 

"  COUNTRY," 

when  and  how  pleadings  conclude  to  it,  196,  289, 290, 292, 399, 425, 426 

COUNTY  COURT,  25,  27,  33. 

COURTS, 

defined,  20. 

of  record,  21. 

not  of  record,  21. 

in  general,  21. 

ancient  prominence  of  procedure,  22.  , 

the  Anglo-Saxon,  24-28. 

Court  Baron,  26. 

of  the  Hundred,  26. 

county,  25,  27. 

lathe  court,  27. 

court  leet,  27. 

Anglo-Norman,  28. 


460  INDEX. 

COURTS  —  continued. 

the  Aula  Regis,  or  Curia  Regis,  28-33,  36,  137. 
Court  of  Exchequer,  29,  32,  35,  153-155. 
Justices  in  Eyre,  30. 
Court  of  Common  Pleas,  31,  32,  35. 

of  King's  Bench,  31,  32,  34,  67,  102,  152,  153. 

of  Exchequer  Chamber,  36. 

of  House  of  Lords,  36. 
inferior,  controlled  by  mandamus,  procedendo,  prohibition,  and  cer- 
tiorari, 102,  103,  107. 
Germanic,  64,  192. 
Supreme  Court  of  Judicature,  22,  156,  166,  167. 

COVENANT,  ACTION  OF, 

a  formed  action  upon  contract,  48,  57-60. 
supported  only  by  a  deed,  58. 
damages  recoverable  in,  58-60. 
declaration  in,  59,  60,  204. 
general  issue  in,  114  and  n.,  242  and  n.  2. 
election  between,  and  debt,  114. 

COVENANTS, 

real,  123  n.,  184. 

implied,  129. 

of  warranty,  184. 

when  debt  lies  upon,  in  cases  of  lease  and  devise,  52,  53,  59,  93. 

COVERTURE.     (See  Husband  and  Wife.) 
pleading  specially,  250  n. 

CRBIINAL  LAW, 

private  prosecution,  13. 
origin  and  aim  of,  65,  66. 
relation  to  trespass,  66,  67. 
exceptio  de  odio  et  atia,  200. 

CLT^IULATIVE   TRAVERSES, 

do  not  make  a  pleading  double,  310-313. 

CURIA  REGIS,  THE,  28-33,  36,  137. 


DAMAGES, 

in  debt,  55. 

in  covenant,  58-60,  93. 

in  account,  60. 

origin  of  in  bot,  65,  66. 

in  trespass,  66-68,  444. 

exemplary,  68. 

in  replevin,  75,  76. 

in  case,  79. 

in  assumpsit,  84,  86,  89. 

in  trover,  90-93. 


INDEX.  461 

DAMAGES  —  continued. 

in  ejectment,  95,  100. 

effect  upon,  of  election  of  actions,  114,  115. 

award  of,  by  jury,  203,  216,  217. 

excessive,  new  trial,  212. 

general  and  special,  418  n. 
DAMNUM   ABSQUE   INJURIA,  12. 
DAY  IN   BANC,  146,  209. 
DEATH.     (See  Survival  of  Actions.) 
DEBT,  ACTION   OF, 

originated  in  procedure,  24. 

the  earliest  formed  action  upon  contract,  48. 

began  as  a  real  action,  49. 

first  lay  for  money  loaned,  then  extended,  50. 

on  records,  51,  55,  61. 

on  statutes,  51. 

on  sealed  contracts,  51,  205. 

on  unsealed  contracts,  when,  52. 

upon  ouster  of  a  lessee  in  part,  52. 

upon  a  devisor's  convenant,  52. 

for  arrears  of  rent,  52,  53. 

when  it  did  not  lie,  52-55. 

differs  from  detinue,  55. 

dependent  upon  the  omission  of  a  duty,  50,  55. 

deficiencies  in,  remedied  by  assumpsit,  83,  87. 

information  for,  105. 

general  issue  in,  114. 

election  between,  and  covenant,  114. 

judgment  on  default  in,  115. 

original  writ  of,  144. 

declaration  in,  165,  227,  338. 

demurrer  in,  form,  174,  227. 

on  bond,  commencement  and  conclusion  of  pleading,  398,  399. 
DECEIT, 

remedy  for,  in  case,  80. 
in  assumpsit,  86,  87. 

DECLARATION,  164-167,  181 .     (See  Pleading.) 
in  detinue,  57. 
in  covenant,  59,  204. 
in  trespass,  73,  161,  166,  285. 

for  mesne  profits,  100. 
in  replevin,  74,  76. 
in  case,  82. 
in  assumpsit,  86,  89. 
in  trover,  93. 
in  ejectment,  97,  98,  100. 
in  debt,  165,  227,  338. 
production  of  suit,  168,  418. 


462  INDEX. 

DECLARATION  —  continued. 

new  assignment  as  a  new,  287. 
duplicity  in  the,  303,  305. 

is  not  within   the  rule  that  a  pleading  bad  in  part  is  bad  alto- 
gether, 402. 

DEED, 

in  England,  the  original  form  of  contract,  47. 
in  support  of  the  action  of  covenant,  58. 
remedy  on,  when  in  debt,  51. 

in  assumpsit,  87. 
suit  upon,  party  plaiutilf,  117,  118. 

defendant,  124. 
profert  and  oyer  of,  185-187. 
estoppel  by,  271. 

when  to  be  alleged  in  pleading,  349,  350. 
DEFAULT, 

judgment  by,  115,  152,  218,  219,  221. 

DEFENCE,  THE,   169-171.     (See  Issue ;  Pleading.) 
DE   HOMINE   REPLEGIANDO, 

writ  of,  74,  106. 

DE   INJURIA,  QJe  son  tort  demesne). 

the  traverse,  251-254.     (See  Replication  j  Traverse.) 
DEMAND, 

in  detinue,  57. 

in  trover,  92. 

in  ejectment,  99. 

of  view,  183. 

of  oyer,  185-187. 

of  jury  trial,  200. 
DEMESNE, 

as  of  fee,  pleading,  345,  400. 

DEMURRER, 

office  of,  101,  174. 

for  non-joinder  or  misjoinder  of  parties,  lies  when,  135,  136. 

joinder  in,  180,  227,  228,  293. 

when  profert  omitted,  186. 

to  evidence,  206-208. 

in  place  of  adding  the  similiter,  293. 

none  upon  a  demurrer,  294. 

joinder  of,  with  another  pleading,  317  n.,  319,  322. 

(1)  nature  and  properties  of, 

general,  for  insufficiency  in  substance,  232-234. 

special,  for  insufficiency  in  form,  232-234. 

effect  of  demurrer, 

admits  facts  sufficiently  pleaded,  234. 
court  considers  the  whole  record  on,  234-236. 
exceptions,  235,  236. 


INDEX.  463 

DEMURRER  —  continued. 

(2)  effect  of  pleading  over  without,  236-239,  322. 

insufficiency  in  adverse  pleading,  when  available  without,  236. 
defective  pleading,  when  aided  by,  236,  237. 

when  by  verdict,  237. 

when  cured  by  the  statutes  of  amendments 
and  jeofails,  211,  214,  224,  238,  239. 

(3)  election  to  demur  or  plead, 

a  question  of  expediency  in  matters  of  form,  239. 

also  in  matters  of  substance  as  to  manner  of  statement,  239,  240 
DEMURRER-BOOK,  189. 
DE   ODIO   ET   ATIA   WRIT,  106,  172,  200. 

DEPARTURE, 

in  pleading,  403-408.     (See  Pleading.) 
DETINUE,  ACTION    OF, 

a  formed  action  upon  contract,  48. 

an  offspring  of  the  action  of  debt,  49,  55. 

how  different  from  debt,  55,  56. 

could  be  joined  therewith,  56. 
DILAPIDATION,  134  n. 
DILATORY  PLEAS.     (See  Pleas.) 

judgment  upon,  217. 
DISCONTINUANCE.     (See  Issue.) 

of  action,  163,  280. 

what  pleading  is  a,  293  n. ,  294  n. 

how  cured  after  verdict  or  certain  judgments,  280  n. 
DISTRESS, 

originally  required  judicial  sanction,  16. 

a  method  of  self-help,  16,  73. 

property  exempt  from,  16. 

remedies  against,  when  illegal,  17,  71. 

when  remediable  in  replevin,  73,  76. 
DISTRINGAS,  149,  202,  209. 
DOMESDAY   BOOK,  198. 
DOUBLE   PLEAS.     (See  Duplicity.) 
DOWER,   ACTION   OF, 

defence  not  made  in,  422,  423. 
DUPLICITY, 

the  rule  against,  — that  pleadings  must  not  be  double,  —  applies  both 
to  the  declaration  and  to  subsequent  pleadings,  303-305. 

it  is  applied  only  to  enforce  a  single  issue  upon  a  single  subject  of 
claim  or  defence,  305,  306. 

it  does  not  compel  each  of  several  defendants  to  make  the  same 
answer,  307. 

a  pleading  is  double  that  contains  several  answers^  whatever  be  the 
class  or  quality  of  the  answer,  307. 


464  INDEX. 

DUPLICITY  —  continued. 

a  pleading  may  be  made  double  by  matter  ill-pleaded,  307,  308. 

but  uot  by  immaterial  matter,  308,  309. 

or  by  matter  pleaded  ouly  as  an  inducement  to  another  allegation, 

309,  310. 
or  by  multifarious  matters  which  together  constitute  but  one  connected 
proposition  or  entire  point,  310. 
this  applies  to  cumulative  traverses,  including  the  replication  de 
injuria  absque  tali  causa  and  the  general  issue  in  some  cases, 
310-313. 
or  by  a  protestation,  313. 
the  rule  against,  qualified  by 

the  use  of  several  counts,  313-317. 
the  use  of  several  pleas,  313,  317-321. 

DURESS, 

deed  made  under,  voidable,  245. 
may  be  pleaded  specially,  250  n. 


ECCLESIASTICAL   COURTS, 

jurisdiction  of,  34. 

early  enforced  nude  pacts,  47,  48. 

controlled  by  prohibition,  104. 

EJECTIONE   FIRM^,  94,  95. 
EJECTMENT,  ACTION   OF, 

not  a  mixed  action,  45. 

history  of,  82,  93-99. 

quare  ejecit  infra  terminum,  94. 

ejectione  firmse,  94-96. 

damages  in,  95,  100. 

judgment  in,  95,  97,  99,  100. 

under  statutes,  99. 

election  between,  and  trespass,  112, 

parties  in,  134. 

ELECTION, 

of  remedies,  considerations  governing, 

(1)  the  nature  of  the  plaintiff's  right,  as  depending  upon  pos- 
session or  title,  111,  112. 

(2)  the  effect  of  non-joinder  of  parties,  in  contract  and  in  tort, 

112,  113. 

(3)  joinder  of  several  demands,  113. 

(4)  depriving  the  defendant  of  defences  by  the  form  of  action, 

113,  114. 

(5)  choice  between  local  and  transitory  actions,  114. 

(6)  death  of  defendant,  effect  on  tort  and  contract,  114. 

(7)  infants  and  lunatics  liable  in  tort  but  not  in  contract,  114. 

(8)  damages  in  different  actions,  114,  115. 

(9)  choosing  tort  where  stringent  process  exists  for  it  against 
defendant,  115. 


INDEX.  465 

ELECTION  —  continued. 

(10)  when  immediate  execution  issues  on  the  judgment,  115. 
between  ejectment  and  trespass,  112. 
to  demur  or  plead,  239,  240. 

ENTRY   UPON   LANDS, 
a  method  of  self-help,  15. 

ENTRY,  WRITS   OF,  44,  45. 
EQUITY, 

growth  of,  34,  78,  81,  86,  171. 

jurisdiction  of,  81. 

in  the  exchequer,  34,  36. 

possession  restored  in,  to  lessees,  95. 

pleading  in,  226. 
ERROR,  WRIT   OF,  103,  108,  206,  446. 

coram  nobis  or  vobis,  222-224. 

questions  of  substance  open  upon,  101,  135,  136,  228,  224,  236,  240- 
ESPLEES,  165,  400. 
ESSOIN   DAY,  146. 
ESTOPPEL, 

by  matter  of  record,  271. 

by  deed,  271,  272, 

by  matter  in  pais,  271. 

pleadings  in,  283,  292. 

title  need  not  be  shown  where  opposite  party  estopped  from  denying, 
354. 

plea  of,  to  be  certain  in  every  particular,  368. 

commencement  and  conclusion  of  pleadings  by,  397,  398,  400. 
EVIDENCE, 

effect  and  admissibility  of,  decided  by  the  judge,  203,  205. 

weight  of,  by  jury,  203. 

demurrer  to,  206-208. 

verdict  against,  new  trial,  210. 

certainty  in,  under  issue,  229  n. 

examination  of  the  plaintiff's  suit,  169,  170. 

need  not  be  pleaded,  362. 
EXCEPTIO,  171-173,  199,  200. 
EXCEPTIONS,  BILL    OF,  206. 
EXCHEQUER,  COURT   OF,  29,  35. 

jurisdiction,  35,  153-155,  168. 

equity  jurisdiction,  34,  36. 

prohibition  from,  103. 

informations  from,  105. 

quo  minus  in,  155,  168. 
EXCHEQUER   CHAMBER,  COURT   OF,  36. 
EXECUTION,  221. 

against  the  person  first  used  in  the  action  of  account,  60. 

30 


466  INDEX. 

EXECUTION".  —  continued. 

in  ejectment,  98,  99. 

immediate,  as  affecting  election  of  actions,  115. 
EXECUTOR, 

retainer  by,  18. 

joinder  of  claims  by  and  against,  111. 

as  party  plaintiff,  122,  123,  132. 
defendant,  129,  131. 
EXEMPLARY   DAMAGES,  68. 
EXIGENT,  150. 

EXTRAORDINARY   REMEDIES, 

mandamus,  102,  103. 
procedendo,  103. 
prohibition,  103,  104. 
quo  warranto,  104,  105. 
informations,  105. 
habeas  corpus,  105-107. 
certiorari,  107. 
■writs  of  error,  108. 

FEE.    (See  Title.) 
FELONY, 

appeals  of,  66. 
FEOFFMENT, 

meaning  of,  348  n.,  369. 

includes  what,  279. 

how  to  be  pleaded,  349. 
FEUD,  64. 
FICTIONS   OF   LAW, 

an  exception  to  the  rule  that  pleadings  must  be  true,  433. 

in  ejectment,  95,  99. 

morality  of,  98  and  n.  3. 
FINE, 

covenant  first  used  to  convey  land  by  way  of,  58. 
FINES, 

in  trespass,  65,  67. 

in  quo  warranto,  105. 
FIXTURES, 

replevin  does  not  lie  for,  75. 

nor  trover,  91. 
FORCIBLE   ENTRY   AND  DETAINER, 

punished  by  criminal  proceedings,  45. 
FORFEITURES, 

recoverable  in  debt,  50. 

of  recognizances,  scire  facias  lay  for  execution,  63. 

informations  for,  105. 


INDEX.  467 

FORM   OF  PLEADING.     (See  Issue ;  Pleading.) 

FRANCHISE, 

repealable  by  scire  facias,  62. 
quo  warranto  respecting,  104. 

FRANK-PLEDGE,  26. 

FRAUD, 

remedy  for,  in  case,  80. 

FRAUDS,  STATUTE   OF,  ' 

may  be  pleaded  specially,  250  n. 
effect  of,  on  pleading,  349,  350,  880. 

FREEHOLD, 

none  less  than  life  estate,  40,  93. 

real  actions  lay  for  only,  40,  71,  72. 

trover  does  not  lie  for  injuries  to,  91. 

replevin  does  not  lie  for  injury  to  things  aflSxed  to,  75. 

rent  of,  how  recovered  formerly,  53. 

general  freehold  title,  how  alleged  and  sustained,  350,  351. 


GAGE, 

a  pledge  of  faith,  47,  48. 

GENERAL   DEMURRER, 

lies  for  insufficiency  in  substance,  232-234. 

GENERAL   ISSUE,  THE, 
when  pleadable,  114. 

in  different  actions,  241-251.     (See  Traverse.) 
as  a  cumulative  traverse,  312. 
fixed  forms  of,  391. 
a  plea  amounting  to  the,  to  be  so  pleaded,  408-411.     (See  Pleading.) 

GOODS    SOLD, 

a  common  count,  89,  338. 

GRAND   ASSIZE,  33,  199. 


HABEAS   CORPORA   JURATORUM,  202,  209,  450. 
HABEAS   CORPUS, 

an  extraordinary  remedy,  105-107. 
HEALTH, 

remedy  for  injuries  to,  in  case,  68,  77,  80. 
HERTOT,  17. 

HILARY   RULES    (1834),  251  n. 
HOUSE   OF   LORDS,  36. 

HUNDRED,   THE,  25. 
jurors  from,  327. 


468  INDEX. 

HUNDRED   COURT,  THE,  26,  27. 

HUNDRED   GEMOTE,  26. 

HUSBAND   AND   WIFE.     (See  Wife.) 
as  parties  plaintiff,  121,  131,  134. 

defendant,  127,  128. 
plea  of  coverture  and  of  non-coverture,  178,  250  n. 


IMMATERIAL   ISSUE.     (See  Issue.) 
IMMATERIAL   TRAVERSE.     (See  Traverse.) 
IMPARLANCE, 

defined,  187,  188. 

general  and  special,  187. 

a  dilatory  plea  not  usually  allowable  after  a  general,  424. 

illustrated,  449. 

INCORPOREAL   HEREDITAMENTS, 

injuries  to,  remediable  in  case,  not  trespass,  62,  81. 
not  recoverable  in  ejectment,  99. 
alleging  title  of  possession  in,  341,  342. 

INDEBITATUS  ASSUMPSIT,  85,  338. 

INDUCEMENT,  THE,  263-266.     (See  Traverse.) 
title  as  matter  of,  341  n. 

INFANT, 

election  of  remedies  against,  114. 
as  party  defendant  in  contract,  127. 

in  tort,  134. 
plea  of  non-age,  176,  193,  250  n. 
deed  of,  voidable,  245. 

INFORMATION, 

an  extraordinary  remedy,  105. 

INQUEST,  33,  199,  200. 
INQUIRY,  WRIT   OF,  216,  217. 
INQUISITION,  197,  198,  216,  217. 
INTERDICT   UNDE   VI,  42. 
INTERLOCUTIO,  187.     (See  Imparlance.) 
INTRUSION, 

information  for,  105. 

ISSUE,  179-181,  189. 

joinder  in  (similiter),  180,  228,  292-294. 

entering,  190. 

trial  of,  in  law,  191,  215-218. 

in  fact,  191-193,  203,  210-215. 
to  be  single,  material,  and  certain,  226,  229,  230. 
to  specify  particulars,  including  place  and  time,  230. 


INDEX.  469 

ISSUE  —  continued. 

Rules  tending  simply  to  production  of  : 

Rule  I.  After  declaration,  at  each  stage,  parties  must,  "with 
cei'tain  exceptions,  demur,  or  plead  by  way  of  traverse,  or 
of  confession  and  avoidance,   231. 

1.  Of  demurrers.     (See  Demurrer.) 

nature  and  properties  of,  232-236. 
effect  of  pleading  over  without,  236-239. 
determining  election  to  demur  or  plead,  239,  240. 

2.  Of  pleadings : 

(A)  Of  the  nature  and  properties  of  traverses,  240-272. 

(See  Traverse.) 
the  common  traverse,  240,  241. 
the  general  issues,  241-251,  391. 
the  traverse  de  injuria,  251-254. 
the  special  traverse,  255-266. 
in  general,  266-272. 

(B)  Pleadings  in  confession  and  avoidance.     (See  Con- 

fession and  Avoidance,  Pleas  in.) 
division  of,  272,  273. 
conclusion  of,  273. 
to  give  color,  273-279. 

(C)  The  nature  and  properties  of  pleadings  in  general : 

(1)  Every   pleading   must   be    an   answer    to  the 

whole  of  what  is   adversely  alleged ;    dis- 
continuance, 279-281. 

(2)  It  confesses  such  traversable  matters  alleged 

on  the  other  side  as  it  does  not  traverse  ; 
protestation,   281,   282. 
Exceptions  to  Rule  I.  :  — 

(1)  Where  a  dilatory  plea  is  interposed,  283. 

(2)  Pleadings  in  estoppel,  283,  292. 

(3)  Where  a  new  assignment  is  necessary ;  new  assign- 

ment extra  viam,  283-289. 
Rule  II.     Upon  a  traverse,  issue  must  be  tendered,  289-292. 
Exception  :    When  new  matter  is  introduced,  the  pleading 
concludes  with  a  verification,  290-292. 
•Rule  III.     Issue,  when  well  tendered,  must  be  accepted,  292-294. 
the  similiter,  292-294. 
joinder  in  demurrer,  180,  293,  294. 
Rules  tending  to  secure  the  materiality  of  the: 

Rule.  All  pleadings  must  contain  matter  pertinent  and  ma- 
terial, 295-302. 

as  applied  to  traverses : 

(1)  Traverse  must  not  be  taken  on  an  immaterial  point, 
which  includes  matter  prematurely  alleged,  matter 
of  aggravation,  and  of  inducement,  295,  296. 
but  traverse  may  be  taken  on  any  of  several  material 
allegations,  297. 


470  INDEX. 

ISSUE  —  continued. 

(2)  A  traverse  must  Bot  be  either  too  large  or  too  narrow, 
297-302. 
it  is  too  large  if  taken  on  an  immaterial  allegation, 
or  on  more  of  a  material  allegation  than  is  ma- 
terial, 297-299. 

or  if    taken    in    the   conjunctive,  instead    of 
the   disjunctive,  299. 
it  is  not  too  large  when  taken  on  a  material  allega- 
tion of  title  or  estate,  to  the  extent  alleged,  though 
unnecessarily  alleged  to  that  extent,  299. 
it  is  too  narrow  if  it  does  not  fully  answer  the  whole 
of  the  allegation  which  it  proposes  to  answer,  300- 
302. 
this  includes  a  traverse  to  part  only  of  an  indivisi- 
ble and  entire  allegation,  301,  302. 
Rules  tending  to  produce  singleness  or  unity  iu  : 

Rule  I.     Pleadings  must  not  be  double,  303.     (See  Duplicity.') 
this  rule,  how  applied,  303-313. 
qualified  by 

the  use  of  several  counts,  313-317. 
the  use  of  several  pleas,  313,  317-321. 
Rule  II.     It  is  not  allowable  both  to  plead  and  to  demur  to  the 
same  matter,  322. 

effect  of  this  rule,  322. 

not  changed  by  the  statute  4  Anne,  c.  16,  §  4,  322. 
Rules  tending  to  produce  certainty  or  particularity  in  the: 

Rule  I.     The  pleadings  must  have  certainty  of  place  5  venue, 

323-334.     (See  Venue.) 
Rule  II.     The  pleadings  must  have  certainty  of  time,  334-336. 

(See  Time.) 
Rule  III.     The  pleadings  must  specify  quality,  quantity,  and 
value,  336-339. 

Exceptions,  338,  339. 
Rule  IV.     The  pleadings  must  specify  the  names  of  persons, 

339,  340.     (See  Name.) 
Rule  V.     The  pleadings  must  show  title,  341-355.    (See  Title.) 
Exceptions  :  (1)  when  the  opposite  party  is  estopped  from 
denying  title,  354,  355. 
(2)  avowries  and  cognizances,  355. 
Rule  VT.     The  pleadings  must  show  authority,  355-358. 

averments  of  authority  to  be  strictly  proved,  358. 
Rule  VII.     In  general,  whatever  is  alleged  in  pleading,  must 
be  alleged  with  certainty,  358-381. 
Exceptions,  359-362. 
subordinate  rules  :  — 

(1)  Mere  matter  of  evidence  not  to  be  pleaded,  362-364. 

(2)  Matter  of  which  the  court  takes  notice  ex  officio 

need  uot  be  stated,  364-366. 


INDEX.  471 

ISSUE  —  continued. 

(3)  Or  matter  coming  more  properly  from  the  other 

side,  366-368. 

but  pleas  of  estoppel,  and  of  alien  enemy, 
must  be  certain  in  every  particular,  368. 

(4)  Circumstances  necessarily  implied  need  not  be  al- 

leged, 369. 

(5)  So  of  what  the  law  will  presume,  369. 

(6)  A  general  mode  of  pleading  is  allowed  to  avoid 

great  prolixity,  370-372. 

(7)  Such  mode  is  often  sufficient  where  the  opposing 

allegation  must  reduce  the  matter  to  certainty, 
372-377. 

(8)  No  greater  particularity  required  than  the  nature 

of  the  thing  pleaded  will  conveniently  admit,  377, 
378. 

(9)  Less  particularity  required  when  the  facts  lie  more 

in  the  opposite  party's  knowledge,  378,  379. 

(10)  And  in  the  statement  of  matter  of  inducement  or 

aggravation,  379,  380. 

(11)  Such  certainty  only  is  required,  as  to  acts  valid  at 

common  law,  but  regulated  as  to  performance  by 
statute,  as  sufficed  before  the  statute,  380,  381. 
(For  further  rules,  see  Pleading.) 

ISSUE  ROLL,  220. 


JEOFAILS,  STATUTES  OF, 

an  aid  to  defective  pleading,  when,  238-240,  280  n.,  334  n.,  336, 
337  n.,  417. 
JOINDER, 

of  detinue  with  debt,  56,  109. 

of  different  forms  of  actions,  109. 

of  different  rights  of  action,  110,  113,  813. 

of  issue  (similiter),  180,  228. 

in  demurrer,  180,  293. 

JUDGMENT,  160,  215,  228.    (See  Verdict.) 
debt  lay  upon,  50,  51. 
in  trover,  93. 
in  ejectment,  95,  100. 

motion  in  arrest  of,  101,  135,  136,  211,  214,  224,  236,  238,  239. 
when  a  bar,  101. 

relief  from,  by  audita  querela,  102  n. 
for  delay,  by  procedendo,  103. 
effect  upon,  of  misjoinder  of  counts,  111. 
upon  voucher  to  warranty,  184. 
signing  for  want  of  plea,  187  n. 
medial,  192. 


472  INDEX. 

JUDGMENT  —  continued. 

non  obstante  veredicto,  212-214,  236. 
for  the  plaintiff,  216,  217. 

respondeat  ouster,  216,  218. 
quod  recuperet,  interlocutory  and  final,  216-219. 
for  the  defendant,  217. 

quod  breve  casseter,  217,  219. 
nil  capiat  per  breve,  217. 
by  default,  confession,  &c.,  115,  152,  218-221. 
how  pronounced,  220. 
entering,  220,  221. 
given  upon  the  whole  record,  235,  236. 

exceptions,  235,  236. 
upon  demurrer,  not  now  generally  final,  239  n. 
prayer  for,  when  pleadings  conclude  with,  392-400. 
JUDICIAL  CIRCUITS,  30,  32,  33. 
JURISDICTION, 

trespass  lay  for  acts  beyond  court's,  69. 
lack  of,  prohibition  for,  103,  104. 

habeas  corpus,  106. 
of  King's   Bench  and  Exchequer,  extended  by  Bill  of  Middlesex, 

latitat,  and  quo  minus,  153. 
pleas  to  the,  175,  420,  421. 
JURY, 

trial  by,  173,  197-212.    (See  Damages;  Hundred;  Verdict.) 

conduct  of,  203,  204. 
view  by,  183. 
as  witnesses,  229,  323. 
JUSTICES  IN  EYRE,  30,  33. 


KING'S  BENCH,  COURT   OF,  31,  32,  152. 

jurisdiction,  34,  67,  153,  167. 

a  court  of  appeal,  35. 

mandamus  from,  102. 

prohibition  from,  103. 

biU  of  Middlesex  and  latitat  in,  153,  167. 


LA  PEINE  FORTE  ET  DURE,  199,  201. 
LATHE   COURT,  27. 
LATITAT,  150,  153,  167. 

LEASES, 

when  debt  lies  upon,  52,  53. 
remedy  upon,  in  covenant,  59,  93. 
in  ejectment,  93-99. 
technical  words  in,  129  n. 


INDEX.  473 


LEAVE   OF  COURT, 

to  amend  pleadings,  190. 

to  plead  several  pleas,  318,  321. 

LETTERS-PATEN  T, 

repealable  by  scire  facias,  62. 

LIBEL, 

remediable  in  case,  80. 

truth  of  charge  to  be  pleaded  specially,  249  n. 
words  of,  to  be  set  forth,  391. 
LIBERUM   TENEMENTUM, 
plea  or  avowry  of,  350,  351. 

LIFE   ESTATE, 

the  lowest  freehold,  40,  93. 
LIMITATIONS,  STATUTE   OF, 

applies  to  amendments,  101. 

in  cases  of  fraud,  113,  203. 

provable  under  what  pleas,  246  n.,  248  n. 
LOCAL  AND  TRANSITORY  ACTIONS,  329-334. 

LUNATIC, 

election  of  remedies  against,  114. 

deed  of,  void,  245. 

lunacy  pleaded  specially,  250  n. 


MAINPRIZE,  WRIT  OF,  105. 
MALFEASANCE, 

injuries  by,  remediable  in  case,  79. 

in  assumpsit,  83. 
MANDAMUS, 

an  extraordinary  remedy,  102,  103. 

MANOR   COURT,  26,  30. 
MASTER   AND   SERVANT, 

when  trespass  does  not  lie  for  servant's  act,  69. 
when  it  lies  for  injury  to  servant,  70. 

MATERIALITY  OF  ISSUE,  295-302.    (See  Issue.) 
MATTER  IN  PAIS, 
estoppel  by,  271. 

MAYHEM,  66. 

MEDIAL  JUDGMENT,  192. 

MESNE  PROFITS,  100. 

MISCHIEVOUS   ANIMALS,    {^qq  Animals.) 

MISFEASANCE, 

injuries  by,  remediable  in  case,  79. 

in  assumpsit,  83. 


474  INDEX. 

MISJOINDER.    (See  Pomes.) 
MISNOMER, 

remedy  for,  178,  181,  340. 
MISTAKE, 

of  form,  plea  iu  abatement  must  correct,  424. 

MIXED   ACTIONS,  40,  45. 
quare  impedit,  45. 
waste,  45. 
no  view  in,  183. 
no  voucher  to  warranty  in,  184. 
oyer  in,  185. 
judgment  in,  218,  219. 

MONEY   COUNTS, 

included  in  the  common  counts,  89. 
joinder  of,  316,  317. 

MONEY  DUE   ON  ACCOUNT  STATED,  316. 
MONEY   HAD   AND   RECEIVED, 

a  common  count,  86,  89,  316. 
MONEY   LENT, 

a  common  count,  89,  316. 
MONEY   PAID, 

a  common  count,  89,  316. 
MOTION  IN   ARREST   OE  JUDGMENT, 

when  effective,  101,  135,  136,  211,  214,  224,  236,  238,  239,  417. 
MULTIPLICITY   OF   ACTIONS, 

joinder  of  counts  in  one  action  to  prevent,  109-111,  113. 


NAME, 

of  person,  to  be  specified  in  pleadings,  339,  340. 

this  applies  to  names  of  a  party  and  of  a  person  not  a  party,  339,  340. 

consequences  of  mistake  in  specifying,  178,  181,  340. 

NEGATIVE   PREGNANT, 

what  amounts  to,  in  a  traverse,  384-386. 
NEGLIGENCE, 

remediable  in  case,  80. 
in  trover,  92. 

election  between  action  for,  and  on  an  implied  promise,  112,  115. 

NEGOTIABLE   INSTRUMENTS, 
when  debt  lies  upon,  53,  54. 

NEW   ASSIGNMENT,  283-289.    (See  Issue.) 
extra  viam,  285-289. 

NEW  TRIAL, 

grounds  and  motion  for,  206,  210,  211,  222. 
granting  motion  for,  discretionary,  211. 


INDEX.  475 

NIL   CAPIAT, 

judgment  of,  219. 
NIL  DEBET, 

the  general  issue  in  debt  on  simple  contract,  241,  242  n.,  245,  246, 
312.    (See  Traverse.) 
NIL   DIGIT, 

judgment  by,  218,  238,  417. 

NISI   FECERIS,  139. 
NISI   PRIUS,  201,  202. 
NOLLE   PROSEQUI,  219,  444. 
NON  ASSUMPSIT, 

plea  of,  243,  247-250.    (See  Traverse.) 

NON   CEPIT, 

the  general  issue  in  replevin,  243,  251.    (See  Traverse.) 

NON  DAMNIFIC ATUS, 

plea  of,  360,  373,  374. 
NON  DETINET, 

the  general  issue  in  detinue,  242,  246.     (See  Traverse.) 

NON  EST   FACTUM.    (See  Traverse.) 

the  general  issue  in  debt  on  specialties,  241,  244,  245,  270,  271. 
in  covenant,  242,  244,  245. 

NONFEASANCE, 

trespass  does  not  lie  for,  68. 
injuries  by,  remediable  in  case,  79. 

in  assumpsit,  83. 

NON   OBSTANTE   VEREDICTO, 

judgment  of,  212-214,  236. 

NON  PROS., 

judgment  by,  219,  232. 

NONSUIT, 

for  non-joinder  of  parties,  112,  185,  136. 
judgment  of,  335. 

NON   SUM  INFORMATUS, 

judgment  by,  218,  238,  417. 

NORMANS, 

inquisition  of  the,  197,  198. 
NOT   GUILTY, 

the  general  issue  in  trespass  and  case,  242,  243,  246,  247,  249,  250, 
312.     (See  Traverse.) 
NOTICE, 

judicial,  of  what  matters  taken,  364-366. 

of  set-off,  248  n. 
NOVEL   DISSEISIN, 

assize  of,  14,  42-45,  199.    (See  Assize.) 


476  INDEX. 

NUISANCE, 

remedy  in  case  for  a,  77,  78. 

NUL   TIEL   RECORD, 
issue  of,  196. 


OATH, 

assertory,  193. 
trial  by,  193,  194. 

OFFER   OF   PROOF,  170. 

OFFICE, 

patent  for,  repealed  by  scire  facias,  62. 

ORDEAL,  TRIAL   BY,  194,  195. 

ORIGINAL   WRIT,   THE, 

history  and  nature  of,  137-148. 

OUSTER, 

partial,  of  lessee,  when  debt  lies  against  him,  52. 
remedy  for,  in  ejectment,  94,  96-99. 
by  quo  warranto,  104. 

OUTLAWRY, 

as  punishment  and  as  process,  66,  67,  151. 

OYER.     (See  Profert.) 

pleas  in  abatement  based  on,  of  the  original  writ,  177. 

demand  of,  when  profert  is  made,  185,  376. 

form  of,  227. 

demandable,  in  all  actions,  185. 

not  now  of  records  or  original  writs ;  and  of  deeds,  &c., 
only  when  profert  is  necessarily  made,  186,  427. 
only  at  the  term  at  which  profert  is  made,  186. 

when  deed  is  set  forth  in  the  plea,  effect,  186,  187. 

not  granted,  but  demurrer  proper,  when  profert  is  improperly  omit- 
ted, 186. 

demand  of,  and  copy  set  forth  in  plea,  effect,  187. 

counterpleas  to,  188,  189. 

demurrer  instead  of  counterplea,  188. 


PAPER-BOOK,  189,  292. 

PAROL,  THE,  160.     (See  Pleading.) 

PAROL   DEMURRER,  176. 

PARTICULAR  ESTATES,  346-348,  352.    (See  TitU.) 

PARTICULARITY, 

in  issue,  323-334.    (See  Issue.) 


INDEX.  477 

PARTIES  TO   ACTIONS, 

scire  facias  to  change  or  add,  61,  62. 

non-joinder  or  misjoinder  of,  effect,  112,  135,  136. 

Dicey's  rules  as  to,  116-136. 

for  actions  of  contract,  116-130. 
of  tort,  130-134. 
consequences  of  non-joinder  and  of  misjoinder  of,  135,  136. 

PARTNERS, 

as  parties  plaintiff,  119,  120,  131. 
defendant,  126,  133. 

PAYMENT   OF  MONEY  INTO  COURT, 
plea  of,  288,  n.  1. 

PEACE, 

local,  64. 

the  king's,  64,  67,  68,  139. 

PENALTIES, 

recoverable  in  debt,  50. 

PERFORMANCE, 

how  pleaded,  360,  375,  376. 

PERSONAL  ACTIONS,  40,  46-48.    (See  Actions.) 
no  view  in,  183. 

no  voucher  to  warranty  in,  184. 
oyer  in,  185. 
judgment  in,  218. 
defence  in,  422. 

PERSONAL  PROPERTY, 

injuries  respecting,  remedy  in  replevin,  63,  73-77. 

in  trespass,  70,  71,  92. 

in  case,  79,  80. 

in  trover,  91,  92. 
includes  chattels  real,  93. 

PETTY   ASSIZES,  171,  172,  199,  200. 
PLACE,  323-334.    (See  Venue.) 
when  to  be  proved  as  laid,  353. 

PLEADING.    (See  Declaration ;  Demurrer;  Issue;  Pleas.) 
special,  1-10,  171-173,  199,  200,  251  n. 
originally  oral,  159,  163,  229. 
to  be  signed  by  a  barrister,  164. 
by  bill,  153,  167,  168. 
after  view,  183. 

after  voucher  to  warranty,  184. 
profert  and  oyer,  177,  185-187. 
imparlances,  187,  188. 
amendment  of,  189,  190. 
repleader,  212-215.    (See  Repleader.) 


478  INDEX. 

PLEADING  —  continued. 

Rules  tending  to  prevent  obscurity  or  confusion  in : 

Rule  I.    Pleadings  must  not  be  insensible  or  repugnant,  382. 

Exception,  382. 
Rule  II.    Pleadings  must  not  be  ambiguous,  or  doubtful ;  and 
of  different  meanings  the  one  most  unfavorable  to  the  pleader 
is  adopted,  383-386. 

negative  pregnant,  384-886. 
Rule  III.    Pleadings  must  not  be  argumentative,  386-388. 
two  affirmatives  do  not  make  a  good  issue,  387,  388. 

Exception,  388. 
two  negatives  do  not  make  a  good  issue,  388. 
Rule  IV.    Pleadings  must  not  be  hypothetical,  or  in  the  alter- 
native, 388,  389. 
Rule  V.    Pleadings  must  not  be  by  way  of  recital,  but  must  be 

positive  in  their  form,  389. 
Rule  VJ.    Things   are  to  be  pleaded  according  to  their  legal 
effect  or  operation,  390,  391. 
Exception,  391. 
Rule  VII.  Pleadings  should  observe  the  known  and  ancient  forms 

ofexpression,  as  contained  in  approved  precedents,  391,  392. 
Rule  VIII.    Pleadings  should  have  their  proper  formal  com- 
mencements and  conclusions,  392-401. 
of  dilatory  pleas,  392,  393. 
of  pleas  in  bar,  394. 
of  replications,  394-396,  398. 

of  pleadings  subsequent  to  the  replication,  396,  397. 
of  pleadings  by  way  of  estoppel,  397,  398. 
pleadings  to  part  only  of  adverse  matter,  398. 
in   replevin ;  avowries  and  cognizances,  398. 
in  debt  on  bond,  398,  399. 
in  pleadings  which  tender  issue,  399. 
effect  of  error  in,  399,  400. 
Rule  IX.    A  pleading  bad  in  part  is  bad  altogether,  401,  402. 
not  applicable  to  the  declaration,  402. 
Rules  tending  to  prevent  prolixity  and  delay  in : 

Rule  I.   There  must  be  no  departure  in  pleading,  403-408. 

(1)  in  point  of  fact,  403-405. 

(2)  in  point  of  law,  405-407. 

none  where  the  variance  is  on  an  immaterial  point,  407, 408. 
Rule  II.   A  plea  amounting  to  the  general  issue  should  be  so 
pleaded,  408-411. 

effect  of  giving  color,  410. 
Rule  II.  not  absolute,  411. 
Rule    III.     Surplusage    is    to    be    avoided,    412-414.      (See 
Surplusage.) 
Certain  miscellaneous  rules  discussed,  viz. :  — 

Rule  I.    The  declaration  should  commence  with  a  recital  of  the 
writ,  415,  416. 


.   INDEX.  479 

PLEADING  —  continued. 

Rule  II.  The  declaration  must  be  conformable  to  tbe  original 

writ,  417,  418. 
Rule  III.  The  declaration  should  conclude  (1)  by  laying  dam- 
ages ;  (2)  and  allege  production  of  suit,  41S-42U. 
Rule  IV.    Pleas  must  be  pleaded  in  due  order,  420,  421. 
Rule    V.    Pleas  must  be  pleaded  with  defence,  421-423. 

full  defence  and  half  defence,  423. 
Rule  VI.    Pleas  in  abatement  must  give  the  plaintiff  a  better 

writ  or  bill,  424. 
Rule  VII.    Dilatory  pleas  must  be  pleaded  at   a  preliminary 

stage  of  the  suit,  424. 
Rule  VIII.    All  ajQBrmative  pleadings  which  do  not  conclude  to 

the  country  must  conclude  with  a  verification,  425,  426. 
Rule  IX.    Profert  must  always  be  made  of  a  deed  alleged  under 
which  a  party  claims  or  justifies,  426-431. 

this  rule,  in  general,  applies  only  to  deeds,  427. 
its  limitations,  427,  428. 
its  reason,  428-431. 
Rule  X.    All  pleadings  must  be  properly  entitled  of  the  court 

and  term,  431,  432. 
Rule  XT.    All  pleadings  ought  to  be  true,  432,  433. 
fictions  as  an  exception,  433. 

(For  further  rules,  see  Issue.) 

PLEAS, 

determined  the  right  to  join  counts,  110. 
effect  upon,  of  election  of  actions,  113. 
general  issue,  114. 

dilatory,  175-178,  217,  283,  321,  392,  893,  424,  432  n. 
peremptory,  175,  178,  217. 
puis  darreign  continuance,  182. 
special,  251. 

in  confession  and  avoidance,  272-279.     (See  Confession  and  Avoid- 
ance, Pleas  in.) 
of  tender  and  payment  into  court,  288,  n.  1. 
duplicity  in,  304,  306,  308  n. 

different,  to  different  parts  of  the  declaration,  317  n. 
several, 

use  of,  317-321. 

effect  of  the  statute  of  4  Anne,  c.  16,  212,  313,  318-322. 
laying  venue  in,  325. 
of  liberum  tenementum,  351. 
order  of,  &c.,  420-424.     (See  Pleading.) 

PLEDGE, 

detinue  for,  57. 

PLEDGES, 

formerly  required  of  plaintiff  at  institution  of  suit,  145. 


480  INDEX. 

PLEDGES  —  continued. 

in  replevin,  74. 

when  sheriff  took  insufficient,  scire  facias  lay  against,  63. 
POSSESSIOX, 

what  sufficient  to  support  trespass,  as  to  personalty,  70,  71. 

as  to  real  property,  71,  72. 

immediate  right  to,  necessary  in  detinue,  57. 

in  replevin,  76. 

in  trover,  91. 

in  ejectment,  99. 

restored  under  leases,  in  equity  and  in  ejectment,  96-100. 

title  of,  how  laid,  341-344,  350. 

alleging,  as  against  a  wrongdoer,  342. 

POSTEA, 

the  formal  entry  of  the  verdict,  205. 
PRECIPE,  138,  139,  145,  147,  315. 
PRAYER  OF  JUDGMENT, 

in  pleadings,  392-400. 

PRESCRIPTION, 

rights  by,  how  pleaded,  344  n. 

PREST,  &c.,  425. 

PRESUMED   FACTS, 

need  not  be  alleged,  369. 

PRINCIPAL   AND   AGENT, 

as  parties  plaintiff,  118,  119,  131. 
defendant,  125,  133. 
PRIVITY   OF   ESTATE, 

where  it  exists,  debt  lies  for  rent,  52,  53. 

PROCEDENDO,  WRIT   OF, 

an  extraordinary  remedy,  103.  ^ 

PROCEDURE, 

ancient  prominence  of,  22,  38. 
the  Judicature  Acts  and  Rules,  22. 
formerly  related  chiefly  to  realty,  46. 

PROCESS, 

outlawry  as,  66. 

remedy  in  trespass,  abuse  of,  69. 

in  case,  80. 
original  and  judicial,  147,  148. 
summons,   attachment,    distringas,    and  capias  ad   respondendum, 

148-150. 
latitat  et  discurrit,  exigent,  proclamation,   and  capias   utlagatum, 

150,  151. 

PROCLAMATION,  WRIT   OF,  150. 
PRODUCTION  OF   SUIT,  168,  169,  419, 


INDEX.  481 

PROFERT.     (See  Oyer  ;  Pleading.) 

nature  and  form  of,  185,  227,  427-431. 

made  ia  open  court,  effect,  185. 

oyer  demaudable  only  when  it  is  made,  186. 

not  at  a  term  subsequent  to,  186. 

improper  omission  of,  only  ground  for  demurrer,  186,  187. 

when  necessary,  427,  428,  431. 
PROHIBITION, 

an  extraordinary  remedy,  103,  104. 

PROLIXITY, 

in  pleading,  discountenanced,  370,  403-408.     (See  Pleading.') 
PROMISE, 

as  a  consideration,  82. 

originally  not  a  consideration,  50. 

implied,  85,  88. 

election  between  implied,  and  breach  of  duty,  112,  115. 
PROTESTATION, 

use  of,  281,  282. 

does  not  make  a  pleading  double,  313. 
PUIS  DARREIGN   CONTINUANCE, 

plea  of,  182. 

commencement  and  conclusion  of,  397. 

PUNITIVE  DAMAGES,  68. 


QUALITY, 

when  and  how  to  be  specified  in  pleadings,  336-339. 
QUANTITY, 

when  and  how  to  be  specified  in  pleadings,  336-339. 
when  to  be  proved  as  laid,  353. 

QUANTUM  MERUIT, 

a  common  count,  85,  89. 

whether  debt  properly  lay  upon  a,  84  n. 

QUANTUM   VALEBANT, 

a  common  count,  89. 

QUARE   CLAUSUM   FREGIT,  67,71,72. 
QUARE   EJECIT,  94,  95. 
QUARE   IMPEDIT, 

a  mixed  action,  45. 

defence  in,  422. 

QUASI-CONTRACTS, 

remedy  upon,  85. 

QUE   ESTATE,  344  n.,  352. 
QUOD   CASSETER  BREVE, 
judgment  of,  217,  219. 

31 


482  INDEX. 

QUOD  RECUPERET, 

judgment  of,  216,  218,  219. 

QUO   MINUS,  155,  168. 

QUO  WARRANTO, 

an  extraordinary  remedy,  104, 105. 


REAL   ACTIONS,  40-45. 
development  of,  42. 
lay  only  for  freehold  estates,  40. 

dealt  originally  with  the  title,  and  not  with  mere  seisin,  40. 
Writs  of  Right,  41,  421. 
Writs  in  the  Nature  of  Writs  of  Right,  41. 
development  of,  42-45. 
novel  disseisin,  42. 
assize  of  mort  d'ancestor,  43. 
to  recover  arrears  of  freehold  rents,  53. 
scire  facias  lay  in,  when,  61. 
view  in,  183. 

voucher  "to  warranty  in,  184. 
oyer  in,  185. 
judgment  in,  218. 

REAL  PROPERTY.     (See  Real  Actions.) 

does  not  pass  by  an  award,  18. 

remitter  applies  only  to,  19. 

consequential  injuries  to,  remedy  in  case,  79. 

detinue  does  not  lie  for,  56. 

injuries  to,  remediable  in  trespass,  67,  71,  72. 
in  case,  79,  81. 
REBUTTER, 

defined,  181. 

RECAPTION, 

a  method  of  seK-help,  15. 
RECOGNITION, 

the  jurors'  answer,  198. 
RECORD, 

debt  lay  upon,  51,  55,  61. 

scire  facias  upon,  61. 

transcript  of,  by  certiorari,  107. 

of  courts,  a  perpetual  memorial,  162. 

no  oyer  now  demandable  of  a,  185,  186,  431. 

entering  the  issue  on,  190. 

trial  by  the,  196. 

estoppel  by  matter  of,  271. 

REJOINDER, 

defined,  181. 
form  of,  228. 


INDEX.  483 

REJOINDER  —  continued. 

joinder  of  parties  in,  307  and  n. 
commencement  and  conclusion  of,  396,  898,  400. 

RELEASE, 

pleading  a,  250  n.,  349. 

plea  of,  is  a  plea  in  discharge,  272. 

REMEDIES, 

exist  for  all  rights  violated,  11. 
extraordinary,  102-108. 

REMITTER, 

a  method  of  self-help,  19. 

RENT, 

when  debt  lay  for,  52,  53. 

election  to  sue  for,  in  debt  or  covenant,  59. 

REPLEADER,  212-215. 

before  and  after  the  statute  4  Anne,  c.  16,  212,  213. 

motion  for  a,  213,  215. 

granted  only  for  a  formal  defect  in  the  pleadings,  214,  215. 

REPLEVIN,  ACTION   OF, 

a  formed  action  in  tort,  63,  73-77. 

forms  of,  74,  106. 

effect  of  the  Statute  of  Marlebridge  (52  H.  III.),  75. 

damages  in,  75,  76. 

declaration  in,  74,  76,  343. 

pleas  in,  76. 

when  it  lies,  75,  76. 

election  between,  and  trespass,  115. 

commencement  and  conclusion  in  pleadings  in,  398. 

REPLICATION, 

defined,  180,  181. 

exception  met  by,  173. 

on  a  counterplea  to  over,  189. 

form  of,  227,  228. 

new  assignment  is  in  the  nature  of  a,  286. 

the  traverse  de  injuria,  252-254. 

duplicity  in  the,  305,  306. 

de  injuria  absque  tali  causa,  as  a  cumulative  traverse,  does  not  make 

a  pleading  double,  311. 
de  injuria  sua  propria  absque  residuo  causse,  254. 
statute  4  Anne,  c.  16,  §  4,  did  not  extend  to,  320. 
laying  venue  in,  325. 

formal  commencement  and  conclusion  of,  394-396,  398,  400. 
departure  in  the,  403,  405. 

REPRISAL, 

a  method  of  self-help,  15. 


484  INDEX. 

REPUGNANCY, 

in  pleadings,  ground  for  demurrer,  282, 382. 

REPUTATION, 

remedy  for  injury  to,  in  case,  68,  77,  80. 

RESPONDEAT   OUSTER, 

judgment  of,  216,  218,  235. 
RETAINER, 

a  method  of  self-help,  18. 

RETRAXIT, 

judgment  of,  219. 
REVERSION, 

assignee's  remedy  against  lessee,  59. 
injury  to,  remediable  in  case,  79,  81. 

RIGHT,  WRIT  OF,  41,  42,  421. 

RIGHTS, 

developed  by  actions,  3. 
anciently  subordinate  to  procedure,  23. 
ROMAN   LAW, 

influence  of,  13,  28,  38,  42,  46,  78,  171-173,  226. 
contracts  and  writings  under,  46,  47,  429. 
exoeptio,  171-173. 

aimed  at  restitution  or  compensation,  65. 
pleading  in,  226. 


SALE, 

remedy  upon,  in  debt,  50,  52,  86. 
in  assumpsit,  86,  89. 

SCIRE   FACIAS,  48,  60-63. 

a  judicial,  not  an  original  writ,  60. 

upon  records,  61. 

in  real  actions,  61. 

in  personal  actions,  61. 

to  change  or  add  parties,  61,  62. 

upon  exceptions,  62. 

as  an  original  action,  62,  63. 
SECTA.     (See  Suit.) 

SEDUCTION, 

remedy  for,  in  trespass,  70. 
in  case,  80. 
SEISIN, 

how  pleaded,  345. 
not  protected  by  real  actions,  41. 
assize  of  novel  disseisin,  42,  43. 
of  mort  d 'ancestor,  43. 


INDEX.  485 

SELF-DEFENCE.     (See  Self-help.) 
SELF-HELP,  12-19. 

(1)  By  the  act  of  parties  :  — 

by  self-defence,  15. 

by  recaption  of  persons  or  of  goods,  15. 

by  entry  upon  lands,  15. 

by  abatement  of  nuisances,  16. 

by  distress,  16. 

(2)  By  the  joint  act  of  all  parties  :  — 

by  accord,  17. 
by  arbitration,  18. 

(3)  By  sole  operation  of  law  :  — 

by  retainer,  18. 

by  remitter,  19. 
history  of,  12-U,  63. 
repressed  under  Anglo-Saxon  courts,  25. 

SERVANTS, 

injuries  to,  remedy  in  trespass,  70. 
in  case,  80. 
SET-OFF, 

election  of  actions  as  affected  by,  113. 

not  usually  evidence  under  plea  of  nil  debet  or  non-assumpsit,  246  n., 
248  n. 

SEVERAL   COUNTS.     (See  Counts.) 

when  properly  joined  in  one  action,  113,  313-317. 

SEVERAL   ISSUES,  307,  314,  319. 
SEVERAL    PLEAS.     (See  Pleas.) 

when  allowed,  212,  313,  317-322. 
SEVERANCE   IN   PLEADING,  307. 
SHAM   PLEADING,  432,  433. 
SHERIFF, 

a  judicial  officer  under  Anglo-Saxon  procedure,  25,  27. 

scire  facias  against,  63. 

remedies  against,  in  trespass,  69,  71. 
in  case,  80. 

view  under  the,  183. 

SHIREEVE'S   TURN,   27. 
SIMILITER.     (See  Issue.) 

is  a  joinder  in  issue,  180. 

illustration  of,  228. 

origin  of,  and  when  used,  292-294. 

special,  292. 

SINGLE   BOND, 

debt  lay  upon,  51. 
SINGLENESS, 

of  issue,  303-322.     (See  Issue.) 


486  INDEX. 

SLANDER.     (See  Lihel.') 

remediable  in  case,  80. 
SON  ASSAULT  DEMESNE, 

plea  of,  272. 
SPECIAL   CASE,  209. 
SPECIAL   DEMURRER, 

lies  for  insufficiency  in  form,  232-234. 
SPECIAL   ISSUES,  25L 

SPECIAL   PLEADING, 

statements  in  the  Introduction  as  to,  1-10. 

origin  of,  171-173. 

meaning  of,  251  n. 

development  of,  199,  200. 
SPECIAL   TRAVERSE,  255-266.    (See  Traverse.) 
SPECIALTY, 

debt  lies  upon,  51,  55. 

when  assumpsit  lies  upon,  87. 
STATUTE, 

debt  lies  upon  a,  51. 

plea  of,  as  to  usury  or  gaming,  245  and  note. 

a  public,  not  to  be  pleaded,  365. 

STATUTE   OF   FRAUDS.    (See  Frauds,  Statute  of.) 
STATUTE   OF  LIMITATIONS.    (See  Limitations,  Statute  of .) 
STATUTES   CITED, 

Constitution  of  Clarendon,  48,  199. 

Magna  Carta,  31,  39,  113,  152,  200. 

Provisions  of  Oxford,  142. 

St.  of  Marlebridge  (52  Henry  III.),  74. 

Westminster  1,  c.  17,  73. 

1  (13  Edw.  I.),  c.  24,  40,  77,  81,  82,  142. 
*'  2  (     "      "     ),  c.  30,  33. 

«  2  (     "      "     ),  c.  31,  206. 

"  2(     "      "     ),  St.  1,  c.  45,  61. 

5  Rich.  IL,  St.  1,  45. 

32  Henry  VIIL  c.  1,  349. 

32      "  "     c.  28,  §  1,  350. 

32      "  "     c.  34,  59. 

34      "  "     c.  5,  349. 

27  Elizabeth,  c.  5,  9,  233. 

27        "  c.  6,  326n.,  327n.  , 

16  Charles  I.  c.  10,  107. 

16&  17  Charles  IL  c.  8,  327,  331,  333. 

29  Charles  II.  c.  3,  §§  1,  2,  4,  349, 380. 

31  Charles  II.  c.  2,  107. 

4  Anne,  c.  16,  233. 

"        "      §  4,  212,  313,  316-322. 


INDEX.  487 

STATUTES   CITED  —  continued. 

4  Anne,  c.  16,  §  6,  328. 

"      §  11,  178. 

8  Anne,  c.  14,  53. 

9  Anne,  c.  20,  104. 

11  George  II.  c.  19,  §  22,  355. 

5  George  III.  c.  17,  53. 
59  George  III.  c.  46,  196. 

6  George  IV.  c.  50,  §  13,  328  n. 
9  George  IV.  c.  14,  §  5,  127  n. 
3  &  4  William  IV.  c.  42,  134. 

43  &  44  Vict.  c.  42  (Employer's  Liability  Act),  12. 

Common  Law  Procedure  Act,  2. 

Supreme  Court  of  Judicature  Acts,  The,  22, 156,  166,  167. 

SUBSTANTIVE   LAW, 

formerly  subordinate  to  procedure,  24. 

SUIT, 

defined,  20. 

SUIT   (SECTA), 

production  of,  168. 
examination  of,  169. 

SUMMONS,  148,  156-158. 
ad  warrantizandura,  184. 

SUPREME  COURT   OF  JUDICATUKE  ACTS, 
change  of  courts  by  the,  22. 
process  under  the,  156. 
forms  of  actions  under  the,  166,  167. 

SURGEONS, 

negligent,  liable  in  case,  80. 

SURPLUSAGE, 

is  to  be  avoided,  412-414. 
this  rule  requires 

(1)  the  omission  of  matter  wholly  foreign,  412. 

(2)  or  not  required  to  be  stated,  412. 

(3)  brevity  in  manner  of  statement,  413. 
remedy  when  the  rule  is  violated,  413. 
danger  arising  from,  413. 

SUR-REBUTTER, 

replies  to  rebutter,  181. 

SUR-REJOINDER, 

replies  to  rejoinder,  181, 

SURRENDER, 

how  pleaded,  349. 

SURVIVAL  OF  ACTIONS,  114,  118,  120,  122, 123,  125, 126,  129,  131, 
132,  133, 134. 


488  INDEX. 

TENANTS  IN   COMMON, 

•when  trespass  lies  between,  71,  72. 

when  trover,  92. 
TENDER, 

not  evidence  under  nil  debet  or  non-assumpsit,  246  n.,  248  n. 

plea  of,  288,  n.  1. 

TERMS  OF   COURT,  145,  146. 

no  oyer  at  term  subsequent  to  profert,  186. 

pleadings  to  be  entitled  of  the  court  and  term,  431,  432. 

TESTATUM   CAPIAS,  153. 

THWERTUTNAY,  173. 

TIME, 

pleadings  must  have  certainty  of,  334-336. 
averments  of,  when  material,  335. 

when  not,  335,  336,  353. 
TITLE.     (See  Possession.) 

the  pleadings  must  show  title,  341-355. 

I.  When  a  party  alleges  title  in  himself,  or  in  another  whose  authority 
he  pleads  :  — 

(A)  it  is  often  sufficient  to  allege  a  title  by  possession,  341,  342. 
as  against  a  wrong-doer  it  is  sufficient  to  allege  possession, 

342-344. 

(B)  cases  in  which  a  superior  title  must  be  shown,  344. 

(C)  where  title  by  possession  is  inapplicable  or  insufficient,  the 

title  should,  generally,  be  stated  in  its  full  and  precise 

extent,  345-351. 
as  to  the  allegation  of  the  title  itself,  345. 
as  to  the  derivation  of  the  title,  345-351. 

(1)  generally  it  is  sufficient  to  state  a  seisin  in  fee  simple 

per  se,  345. 

(2)  when  necessary  to  show  the  derivation  of  the  fee,  346. 

(3)  the  commencement  of  particular  estates  must  gen- 

erally be  shown,  346-348. 

(4)  claims  by  inheritance,  how  shown,  348. 

(5)  the   nature  of   claims  by  conveyance  or  alienation 

must,  generally,  be  shown,  348. 

(6)  the  nature  of  the  conveyance  or  alienation  should 

be  stated  according  to  its  legal  effect,  348,  349. 

(7)  deeds  or  writings,  when  required  to  be  alleged  in 

pleading,  349,  350. 

allegation  of  general  freehold  title,  when 
sufficient;  plea  or  avowry  of  liberum  tene- 
mentuin,  350,  351. 

II.  When  a  party  alleges  title  in  his  adversary: 

It  is  not  necessary  to  allege  title  more  precisely  than  to  show  a 
liability  in  the  party  charged  or  to  defeat  his  present  claim, 
351-355. 


INDEX.  489 

TITLE  —  continued. 

when  sufficient  to  allege  a  title  of  possession,  351,  352. 
when  superior  title  must  be  shown,  352,  353. 
averments  of  title  must  be  strictly  proved,  353. 
cases  of  estoppel,  and  avowries  and  cognizances  are  exceptions  to  the 
general  rule  requiring  title  to  be  shown,  354,  355. 

TITLE    OF   COURT   AND   TERM, 

all  pleadings  required  to  be  properly  entitled  of  the  court  and  term, 
431,  432. 

TORT, 

formed  actions  in  (trespass  and  replevin),  63-77. 
assumpsit  as  an  action  of,  82,  86. 
election  between,  and  contract,  112,  114. 
of  infant,  lunatic,  or  wife,  114. 
parties  plaintiff  in,  130-132. 
defendant  in,  132-134. 

TRANSITORY   AND  LOCAL  ACTIONS^  329-334. 

TRAVERSE.     (See  Issue  :  Pleading.) 

the  common  traverse,  a  tender  of  issue,  178-181,  240,  241. 
the  general  issues  :  — 

in  debt,  non  est  factum  on  specialties,  241,  244,  245. 
nil  debet  on  simple  contract,  241,  245,  246. 
in  covenant,  non  est  factum,  242,  244,  245. 
in  detinue,  non  detinet,  242,  246. 
in  trespass,  not  guilty,  242,  246,  247. 

in  case,  in  assumpsit,  the  plea  of  non-assumpsit  on  both  implied 
and  express   promises,  and  including   mattei's   in 
confession  and  avoidance,  243,  247-250. 
in  general,  not  guilty,  243,  249,  250. 
in  replevin,  non  cepit,  243,  251. 
the  traverse  de  injuria  :  — 
always  tenders  issue,  251. 

occurs  only  in  replications  in  certain  actions,  252-254. 
the  replication  de  injuria  sua  propria  absque  residuo  caus»,  254. 
the  special  traverse  :  — 

includes  the  inducement,  which  affirmatively  details  inconsistent 
circumstances,  the  absque  hoc,  which  denies  a  fact  of  the  pre- 
ceding pleading,  and  a  verification  and  prayer  for  judgment, 
255,  259-261,  290. 
employed,  when  a  general  denial  is  opposed  to  a  rule  of  law, 
255,  256. 

to  show  that  in  the  particular  case  certain  averments 
of  fact  are  material  and  should  be  truly  pleaded, 
256-258. 
to  separate  questions  of  law  from  those  of  fact,  258. 
to  secure  to  the  pleader  the  opening  and  concluding 
of  the  cause,  258,  259. 


490  INDEX. 

TRAVERSE  —  continued. 
answer  to,  259. 

when  applicable,  formerly  and  now,  261-263. 
the  inducement, 

must  itself  amount  to  a  sufficient  answer  in  substance  to  the  last 

pleading,  263. 
must  not  consist  of  a  direct  denial,  263,  264. 
must  not  be  in  the  nature  of  a  confession  and  avoidance,  264. 
cannot  be  traversed,  i.  e.  "there  must  be  no  traverse  upon  a 

traverse,"  except  when  the  first  is  bad,  264,  265. 
cannot  be  answered  by  a  confession  and  avoidance,  266. 
traverses  in  general, 

must  deny  "  modo  et  forma,"  266,  267. 
must  not  be  taken  on  matter  of  law,  268,  269. 

or  upon    matter    not  alleged,   except  when 
necessarily  implied,  269,  270. 
a  party  to  a  deed,  who  traverses  it,  must  plead  "non  est  factum ; " 

the  doctrine  of  estoppel,  270-272. 
must  be  pertinent  and  material,  295-302.     (See  Issue.) 
must  not  be  too  large  or  too  narrow,  297-302.     (See  Issue.") 
cumulative,  does  not  make  a  pleading  double,  310-313.     (See 
Issue.) 
TRESPASS, 

action  of,  lies  when,  17,  68-73,  101. 
a  formed  action  in  tort,  63-73. 
origin  of,  66,  67. 
de  bonis  asportatis,  67,  70,  71. 
quare  clausum  f regit,  67,  71,  153,  440. 
for  assault  and  battery,  67,  70,  435. 
vi  et  armis,  68,  82,  161. 
ab  initio,  69,  71,  72. 
ejectione  firmse,  94. 
for  mesne  profits,  100. 
joinder  of  counts  in,  110. 
election  between,  and  ejectment,  112. 
and  case,  114. 
and  assumpsit,  112,  115. 
and  replevin,  115. 
original  writ  of,  144. 

bill  of  INIiddlesex,  latitat,  and  quo  minus,  153. 
declaration  in,  73,  161,  166,  285  n. 
defence  in,  422. 
TRESPASS   UPON   THE   CASE.     (See  Case,  Trespass  upon  the.) 

TRIAL.    ■  (See  Judgment :  Verdict.) 
of  issues  in  law,  191. 

in  fact,  191-193. 
by  witnesses,  193. 
by  oath,  193,  194. 


INDEX.  491 

TRIAL  —  continued. 
by  ordeal,  194. 
by  battle,  195. 
by  the  record,  196. 
by  jury,  194,  197-212. 
at  nisi  prius,  201,  202. 
at  bar,  202,  203. 
verdict,  203-212. 
burden  of  proof,  204. 
variance,  204. 

TRITHING,  27. 

TROVER,  ACTION  OF, 

an  action  of  tort,  79,  90-93. 
when  it  lies,  91. 
joinder  of  counts  in,  110. 
election  between,  and  assumpsit,  112,  113. 
TRUSTEE, 

as  party  plaintiff,  121,  122,  132. 
defendant,  128,  134. 

UNITY  OF  ISSUE,  303-322.     (See  Issue.) 

USE   AND    OCCUPATION,  52,  87,  89. 
trespasser  cannot  be  sued  for,  115. 

USURY, 

plea  of,  245  and  note,  250  n. 

VALUE, 

when  and  how  to  be  specified  in  pleadings,  336-339. 
when  to  be  proved  as  laid,  353. 

VARIANCE, 

defined,  204.     ' 

not  vital  as  to  formal  or  immaterial  matters,  205,  267. 

between  writ  and  declaration,  not  ground  for  demurrer,  416. 

how  taken  advantage  of,  244  n.,  417,  418. 

in  assumpsit,  what  material,  87. 

•when  local  facts  are  not  truly  laid,  331. 

mistake  in  name  of  a  person  in  the  pleadings,  when  a,  340. 

title  to  be  strictly  proved  as  laid,  353. 

VENIRE   FACIAS,  201,  202,  323. 
de  novo,  215. 

VENUE, 

meaning  of,  323,  324. 

present  law  of,  324,  325. 

of  the  traversable  allegations,  325. 

ancient  use  of  the,  326. 


492  INDEX. 

YE^UE  — continued. 

changes  in  practice  as  to,  327. 

in  law  of  venue,  327,  328. 
modern  rule  as  to,  328. 
to  be  truly  laid, 

in  local  actions,  320,  330. 
not  in  transitory  actions,  329,  330. 
as  to  facts  arising  out  of  the  realm,  330. 
change  of,  by  defendant  in  a  transitory  action,  330. 
of  local  facts,  to  be  truly  laid,  331. 

transitory  facts  are  laid  with  the  venue  of  the  action,  331,  332. 
effect  of  allegations  under  a  videlicet,  332. 

local  matters  occurring  out  of  the  realm,  how  to  be  alleged,  332,  333. 
place  alleged  as  description,  and  not  as  venue,  to  be  truly  stated,  333. 
defects  in  laying,  how  objected  to,  333,  334. 
VERDICT, 

special,  207-209. 

general,  subject  to  a  special  case,  208,  209. 

principles  for  the  jury  to  consider,  203,  204. 

form  of,  203,. 205,  228,  450. 

entry  of  (the  postea),  205. 

effect  of,  how  avoided,  210-215. 

limited  to  amount  alleged,  339,  418. 

avoiding,  by  motions  :  — 

for  a  new  trial,  210,  211. 
in  arrest  of  judgment,  211,  212. 
for  judgment  non  obstante  veredicto,  212-214. 
for  a  repleader,  213-215. 
for  a  venire  facias  de  novo,  215. 
aider  by,  of  defective  pleading,  237,  238. 
VERIFICATION.     (See  Issue  :  Pleading.) 
origin  and  use  of,  260-262. 
general  and  special,  425. 
used,  when  new  matter  introduced,  260,  290. 

in  affirmative  pleadings  not  concluding  to  the  country,  425. 
in  negative  pleadings,  when,  426. 
of  dilatory  pleas  required,  178. 
VIDELICET, 

effect  of  allegations  under  a,  as  to  the  venue  of  the  action,  332. 
laying  time  under  a,  334,  353. 
"VI  ET   ARMIS," 

to  be  inserted  in  trespass,  68,  73. 
not  inserted  in  case,  82. 
VIEW, 

demand  of,  183. 
no  dilatory  plea  after  a,  424. 
VOUCHER   TO   WARRANTY,  184. 
no  dilatory  plea  after,  424. 


INDEX.  493 


WAGER  OF   LAW,  50,  77,  194,  201 
none  in  the  Exchequer,  53. 
a  defence  in  debt  and  detinue,  56,  90. 
escaped  by  assumpsit  and  trover,  87. 

WAPENTAKE,  26. 

WARRANTY, 

voucher  to,  184. 

WASTE, 

a  mixed  action,  45. 
remediable  in  case,  81,  258. 
dilapidation,  134  n. 

WAY,  RIGHT   OF, 

remedy  for  injuries  to,  68,  81,  431,  432. 
WIFE, 

injury  to,  remedy  in  trespass,  70. 

in  case,  80. 
liberty  of,  restored  by  habeas  corpus,  107. 
torts  of,  114. 
as  party  in  contract,  plaintiff,  121. 

defendant,  127,  128. 

WITE,  65. 

WITENAGEMOTE,  THE,  27,  28,  137. 

WITHERNAM,  WRIT  OF,  74,  106. 

WITNESSES, 

trial  by,  193. 

as  jurors,  229,  323. 

WRITS, 

the  English  system,  38,  108. 

extension  of  jurisdiction  by,  35,  36,  38,  137-147. 

issued  from  the  Chancery,  39,  74,  77,  78,  81,  139-144. 

of  Right,  41,  421. 

in  the  Nature  of  Writs  of  Right,  42. 

new  forms  in  real  actions,  42-45. 

of  entry,  44,  45. 

in  debt,  49. 

of  covenant,  57. 

in  scire  facias,  60,  62. 

of  trespass,  66. 

of  replevin,  73. 

de  homine  replegiando,  74,  106. 

capias  in  withernam,  74,  106. 

in  case,  77-82. 

in  assumpsit,  82. 

in  trover,  90. 

quare  ejecit  infra  tenninum,  94. 


494  INDEX. 

WRITS  —  continued. 
ejectione  firmse,  94. 
of  error.     (See  Error,  Writ  a/,) 
of  mandamus,  102,  103. 
of  procedendo,  103. 
of  prohibition,  103. 
of  consultation,  104. 
of  quo  warranto,  104. 
of  habeas  corpus,  105-107. 
of  mainprize,  105. 
de  odio  et  atia,  106= 
of  certiorari,  107- 
the  original  writ,  137-148o 
oyer  of,  186. 
of  prsecipe,  138,  139,  147. 
register  of,  143. 
testing  and  return,  145. 
of  judicial  writs,  148. 

of  attachment,  distringas,  and  capias  ad  respondendum,  149,  150. 
of  latitat  et  discurrit,  exigent,  of   proclamation,  and  capias  utla- 

gatum,  150,  151. 
bill  of  Middlesex,  latitat,  and  quo  minus,  153,  167. 
summons,  148,  156-158. 
indorsements  on,  157. 
pleas  in  abatement  of,  175-178. 
for  view,  183. 

summons  ad  warrantizandum,  184. 
of  venire  facias,  201,  202,  323. 

de  novo,  215. 
of  habeas  corpora  juratorum,  202. 
of  inquiry,  216,  217. 
of  execution,  221. 


?^. 


y 


^ 


AA    000  869  310    3 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


Form  L9-Series  4939 


